<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 19, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C>
FORD MOTOR COMPANY CAPITAL TRUST I FORD MOTOR COMPANY
(Exact name of Registrant as specified in its charter) (Exact name of Registrant as specified in its charter)
</TABLE>
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<TABLE>
<S> <C>
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
APPLIED FOR 38-0549190
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
THE AMERICAN ROAD THE AMERICAN ROAD
DEARBORN, MICHIGAN 48121 DEARBORN, MICHIGAN 48121
(313) 322-3000 (313) 322-3000
(Address and telephone number (Address and telephone number
of principal executive offices) of principal executive offices)
</TABLE>
-------------------------
J.M. RINTAMAKI
FORD MOTOR COMPANY
THE AMERICAN ROAD
DEARBORN, MICHIGAN 48121
(313) 322-3000
(Name, address and telephone number of agent for service)
-------------------------
Copy To:
ARBIE R. THALACKER
SHEARMAN & STERLING
599 LEXINGTON AVE.
NEW YORK, NEW YORK 10022
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective and all other
conditions to the Exchange Offer (the "Offer") described in the enclosed
Prospectus have been satisfied or waived.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Preferred Securities of Ford Motor Company
Capital Trust I and Junior Subordinated
Debentures of Ford Motor Company........ 44,600,000(1) $27.375(2) $1,220,925,000(3) $421,011.57
Guarantees of the Preferred Securities by
Ford Motor Company...................... -- (4)
Total..................................... 44,600,000 $27.375 $1,220,925,000 $421,011.57
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</TABLE>
(1) Estimated maximum amount of each class of securities listed above issuable
by Ford Motor Company and Ford Motor Company Capital Trust I pursuant to the
Offer as described herein.
(2) Each holder of a Series B Depositary Share representing 1/2,000 of a share
of Series B Cumulative Preferred Stock will receive one Preferred Security.
(3) Calculated in accordance with Rule 457(f) under the Securities Act of 1933.
(4) Includes the rights of holders of the Preferred Securities under the
Guarantee and certain back-up undertakings as described in the Registration
Statement. Pursuant to Rule 457(n) under the Securities Act of 1933, no fee
is payable with respect to the Guarantees.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
CROSS REFERENCE SHEET
FORD MOTOR COMPANY
FORD MOTOR COMPANY CAPITAL TRUST I
CROSS REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K SHOWING
LOCATION IN PROSPECTUS OF ITEMS OF FORM S-4
<TABLE>
<CAPTION>
FORM S-4 ITEM NO. CAPTION IN PROSPECTUS
-------------------------------------------------------------- ---------------------------------------
<C> <S> <C>
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus...................... Outside Front Cover Page; Inside Front
Cover Page
2. Inside Front and Outside Back Cover Pages of Prospectus....... Inside Front Cover Page; Available
Information; Incorporation of Certain
Documents by Reference; Table of
Contents
3. Risk Factors, Ratio of Earnings to Fixed Charges and Other
Information................................................. Prospectus Summary; Special
Considerations Relating to the Offer;
Ford Motor Company; Selected
Financial Data and other Data of
Ford; Ratio of Earnings to Fixed
Charges; Ford Motor Company Capital
Trust I
4. Terms of the Transaction...................................... Prospectus Summary; Comparison of
Preferred Securities and Depositary
Shares; Capitalization; The Offer;
Description of the Preferred
Securities; Description of the
Preferred Securities Guarantee;
Description of the Junior
Subordinated Debentures; Taxation
5. Pro Forma Financial Information............................... Not Applicable
6. Material Contacts with the Company Being Acquired............. Not Applicable
7. Additional Information Required for Reoffering by
Persons and Parties Deemed to be Underwriters............... Not Applicable
8. Interests of Named Experts and Counsel........................ Legal Matters
9. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities.............. Not Applicable
10. Information with Respect to S-3 Registrants................... Incorporation of Certain Documents by
Reference
11. Incorporation of Certain Information by Reference............. Incorporation of Certain Documents by
Reference
12. Information with Respect to S-2 or S-3 Registrants............ Not Applicable
13. Incorporation of Certain Information by Reference............. Not Applicable
14. Information with Respect to Registrants
Other than S-3 or S-2 Registrants........................... Not Applicable
15. Information with Respect to S-3 Companies..................... Not Applicable
16. Information with Respect to S-2 or S-3 Companies.............. Not Applicable
17. Information with Respect to Companies
Other Than S-3 or S-2 Companies............................. Not Applicable
18. Information if Proxies, Consents or
Authorizations are to be Solicited.......................... Not Applicable
19. Information if Proxies, Consents or Authorizations
are not to be Solicited or in an Exchange Offer............. Incorporation of Certain Documents by
Reference
</TABLE>
<PAGE> 3
Information contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the Registration Statement
becomes effective. This Prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 19, 1995
PROSPECTUS
FORD MOTOR COMPANY CAPITAL TRUST I
OFFER TO EXCHANGE ITS
[ %] TRUST ORIGINATED PREFERRED SECURITIES(SM) ("TOPRS(SM)")
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY AND
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY FORD MOTOR COMPANY)
FOR UP TO 44,600,000 OUTSTANDING SERIES B DEPOSITARY SHARES,
EACH REPRESENTING 1/2,000 OF A SHARE OF
SERIES B CUMULATIVE PREFERRED STOCK
OF
FORD MOTOR COMPANY
THE OFFER, THE PRORATION PERIOD
AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON , 1995,
UNLESS THE OFFER IS EXTENDED.
------------------------
Ford Motor Company Capital Trust I, a Delaware statutory business trust
(the "Trust"), hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and the accompanying Letter of Transmittal (the
"Letter of Transmittal" which, together with this Prospectus, constitute the
"Offer"), to exchange its [ %] Trust Originated Preferred Securities(SM)
("TOPrS(SM)"), representing preferred undivided beneficial interests in the
assets of the Trust (the "Preferred Securities"), for up to 44,600,000 of the
outstanding Series B Depositary Shares ("Depositary Shares"), each representing
1/2,000 of a share of Series B Cumulative Preferred Stock (the "Series B
Preferred") of Ford Motor Company, a Delaware corporation ("Ford"). Exchanges
will be made on the basis of one Preferred Security for each Depositary Share
validly tendered and accepted for exchange in the Offer. As of the date of this
Prospectus, there are 45,600,000 Depositary Shares outstanding. Depositary
Shares not accepted for exchange because of proration will be returned.
Concurrently with the issuance of Preferred Securities in exchange for
Depositary Shares validly tendered in the Offer, Ford will deposit in the Trust
as trust assets its [ %] Junior Subordinated Debentures due 2025 (the "Junior
Subordinated Debentures"), having an aggregate principal amount equal to the
aggregate stated liquidation amount of the Preferred Securities and the
proceeds received upon issuance of the Common Securities to be issued by the
Trust.
(cover page continues)
------------------------
SEE "SPECIAL CONSIDERATIONS RELATING TO THE OFFER" STARTING ON PAGE 15 FOR A
DISCUSSION OF CERTAIN FACTORS RELATING TO THE PREFERRED SECURITIES THAT
SHOULD BE CONSIDERED BY INVESTORS, INCLUDING THE PERIOD AND
CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS ON THE JUNIOR
SUBORDINATED DEBENTURES AND THE PREFERRED SECURITIES MAY BE
DEFERRED AND THE RELATED FEDERAL INCOME TAX CONSEQUENCES.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
Merrill Lynch & Co., Dean Witter Reynolds Inc., A.G. Edwards & Sons, Inc.,
Goldman, Sachs & Co., Lehman Brothers, PaineWebber Incorporated and Smith Barney
Inc. have been retained as Dealer Managers to solicit exchanges of Depositary
Shares for Preferred Securities. See "The Offer -- Dealer Managers; Soliciting
Dealers". Chemical Bank has been retained as Exchange Agent in connection with
the Offer. Georgeson & Company Inc. has been retained to act as Information
Agent to assist in connection with the Offer.
------------------------
The Dealer Managers for the Offer are:
MERRILL LYNCH & CO.
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
The date of this Prospectus is , 1995.
(SM)"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
<PAGE> 4
NEITHER THE BOARD OF DIRECTORS OF FORD, FORD, THE TRUSTEES NOR THE TRUST
MAKES ANY RECOMMENDATION TO HOLDERS OF DEPOSITARY SHARES AS TO WHETHER TO TENDER
OR REFRAIN FROM TENDERING IN THE OFFER. HOLDERS OF DEPOSITARY SHARES ARE URGED
TO CONSULT THEIR FINANCIAL AND TAX ADVISORS IN MAKING THEIR DECISIONS ON WHAT
ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES.
IN ORDER TO PARTICIPATE IN THE OFFER, HOLDERS (AS DEFINED HEREIN) OF
DEPOSITARY SHARES MUST SUBMIT A LETTER OF TRANSMITTAL AND COMPLY WITH THE OTHER
PROCEDURES FOR TENDERING IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN
AND IN THE LETTER OF TRANSMITTAL PRIOR TO THE EXPIRATION DATE (AS DEFINED
HEREIN). SEE "THE OFFER -- PROCEDURES FOR TENDERING".
For a description of the other terms of the Offer, see "The Offer -- Terms
of the Offer", "-- Expiration Date; Extensions; Amendments; Termination", "--
Withdrawal of Tenders" and "-- Acceptance of Shares and Proration". Consummation
of the Offer is conditioned on, among other things, receipt of at least
12,000,000 validly tendered Depositary Shares, which condition may be waived.
Application will be made to list the Preferred Securities on the New York Stock
Exchange (the "NYSE"). In order to satisfy the NYSE listing requirements,
acceptance of Depositary Shares validly tendered in the Offer is subject to the
condition that as of the Expiration Date there be at least 400 record or
beneficial holders of at least 1,000,000 Preferred Securities to be issued in
exchange for such Depositary Shares (the "Minimum Distribution Condition"),
which condition may not be waived. See "The Offer -- Expiration Date;
Extensions; Amendments; Termination" and "-- Conditions to the Offer".
The Trust expressly reserves the right, in its sole discretion, subject to
applicable law, to (i) terminate the Offer, and not accept for exchange any
Depositary Shares and promptly return all Depositary Shares upon the failure of
any of the conditions specified above or in "The Offer -- Conditions to the
Offer", (ii) waive any condition to the Offer (other than the Minimum
Distribution Condition) and accept all Depositary Shares previously tendered
pursuant to the Offer, (iii) extend the Expiration Date of the Offer and retain
all Depositary Shares tendered pursuant to the Offer until the Expiration Date,
subject, however, to all withdrawal rights of holders, see "The Offer --
Withdrawal of Tenders", (iv) amend the terms of the Offer or (v) modify the form
of the consideration to be paid pursuant to the Offer. Any amendment applicable
to the Offer will apply to all Depositary Shares tendered pursuant to the Offer.
The minimum period during which the Offer must remain open following material
changes in the terms of the Offer or the information concerning the Offer, other
than a change in the percentage of securities sought or the price, depends upon
the facts and circumstances, including the relative materiality of such terms or
information. See "The Offer -- Expiration Date; Extensions; Amendments;
Termination".
Ford will own directly or indirectly all of the securities representing
common undivided beneficial interests in the assets of the Trust (the "Common
Securities" and, together with the Preferred Securities, the "Trust
Securities"). The Trust exists for the purpose of (a) issuing (i) its Preferred
Securities in exchange for Depositary Shares validly tendered in the Offer and
delivering such Depositary Shares to Ford in consideration for the deposit by
Ford of Junior Subordinated Debentures having an aggregate stated principal
amount equal to the aggregate stated liquidation amount of such Preferred
Securities in the Trust as trust assets and (ii) its Common Securities to Ford
in exchange for cash and investing the proceeds thereof in an equivalent amount
of Junior Subordinated Debentures and (b) engaging in such other activities as
are necessary and incidental thereto. The Preferred Securities and the Common
Securities will rank pari passu with each other and will have equivalent terms;
provided that (i) if an Event of Default (as defined herein) under the
Declaration (as defined herein) occurs and is continuing, the holders of
Preferred Securities will have a priority over holders of the Common Securities
with respect to payments in respect of distributions and payments upon
liquidation, redemption or otherwise and (ii) holders of Common Securities have
the exclusive right (subject to the terms of the Declaration) to appoint,
replace or remove Trustees and to increase or decrease the number of Trustees)
upon the occurrence of certain events described herein. See "Prospectus Summary
-- Description of Preferred Securities and Junior Subordinated Debentures".
Cash distributions on the Preferred Securities will be cumulative from the
first day following the Expiration Date (the "Accrual Date") at an annual rate
of [ %] of the liquidation amount of $25 per Preferred Security, and will be
payable quarterly in arrears on the last day of March, June, September and
ii
<PAGE> 5
December of each year, commencing on December 31, 1995 ("distributions"). Cash
distributions in arrears will bear interest thereon at the rate per annum of
[ %], compounded quarterly to the extent permitted by applicable law. The term
"distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. In addition, holders of the Preferred
Securities will be entitled to an additional cash distribution at the rate of
8.25% per annum of the liquidation amount thereof from [ ]
through the Expiration Date ("Pre-Issuance Accrued Distribution") in lieu of
dividends accumulating and unpaid after [ ] on their Depositary
Shares accepted for exchange, such additional distribution to be made on
December 31, 1995 to holders of the Preferred Securities on the record date for
such distribution. The distribution rate and the distribution and other payment
dates for the Preferred Securities will correspond to the interest rate and the
interest and other payment dates on the Junior Subordinated Debentures deposited
in the Trust as trust assets. As a result, if principal or interest is not paid
on the Junior Subordinated Debentures, including as a result of Ford's election
to extend the interest payment period on the Junior Subordinated Debentures as
described below, the Trust will not make payments on the Trust Securities. The
Junior Subordinated Debentures provide that, so long as Ford shall not be in
default in the payment of interest on the Junior Subordinated Debentures, Ford
shall have the right to defer payments of interest on the Junior Subordinated
Debentures by extending the interest payment period from time to time for a
period not exceeding 20 consecutive quarterly interest periods (each, an
"Extension Period"). No interest shall be due and payable during an Extension
Period and, as a consequence, distributions on the Trust Securities will also be
deferred, but at the end of such Extension Period Ford shall pay all interest
then accrued and unpaid on the Junior Subordinated Debentures, together with
interest thereon at the rate specified for the Junior Subordinated Debentures
compounded quarterly to the extent permitted by applicable law ("Compounded
Interest"), and corresponding distributions will be paid by the Trust on the
Trust Securities. All references herein to interest shall include Compounded
Interest unless otherwise stated. There could be multiple Extension Periods of
varying lengths (up to six Extension Periods of 20 consecutive quarterly
interest periods each or more numerous shorter Extension Periods) throughout the
term of the Junior Subordinated Debentures, provided that no Extension Period
may extend beyond the maturity of the Junior Subordinated Debentures. During any
such Extension Period, Ford may not declare or pay dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect to,
any of its common stock or preferred stock or any other securities similar to
the Preferred Securities or the Junior Subordinated Debentures; provided that
Ford will be permitted to pay dividends (and cash in lieu of fractional shares)
upon the conversion, other than at the option of Ford, of any of its preferred
stock, including its Series A Cumulative Convertible Preferred Stock, in
accordance with the terms of such stock. Any Extension Period with respect to
payment of interest on the Junior Subordinated Debentures, other debt securities
of Ford under the Indenture or on any similar securities will apply to all such
securities and will also apply to distributions with respect to the Preferred
Securities and all other securities with similar terms. See "Special
Considerations Relating to the Offer", "Description of Preferred Securities --
Distributions", "Description of the Junior Subordinated Debentures -- Interest"
and "-- Option to Extend Interest Payment Period".
The obligations of Ford under the Junior Subordinated Debentures are
unsecured obligations of Ford and will be subordinate and junior in right of
payment, to the extent set forth herein, to all Senior Indebtedness (as defined
herein) of Ford, except obligations and securities made pari passu or
subordinate by their terms, but senior to all capital stock now or hereafter
issued by Ford and to any guarantee now or hereafter entered into by Ford in
respect of its capital stock. Ford's obligations under the Preferred Securities
Guarantee (as defined herein) are unsecured and will rank (i) subordinate and
junior in right of payment to all Senior Indebtedness of Ford, and to the Junior
Subordinated Debentures, and (ii) senior to all capital stock now or hereafter
issued by Ford and to any guarantee now or hereafter entered into by Ford in
respect of its capital stock.
The payment of distributions out of moneys held by the Trust and payments
on liquidation of the Trust and the redemption of Preferred Securities, as set
forth below, are guaranteed by Ford on a subordinated basis as and to the extent
described herein (the "Preferred Securities Guarantee"). See "Description of the
Preferred Securities Guarantee". The Preferred Securities Guarantee is a full
and unconditional guarantee from the time of issuance of the Preferred
Securities, but the Preferred Securities Guarantee covers distributions and
other payments on the Preferred Securities only if and to the extent that Ford
has made a payment of interest or principal on the Junior Subordinated
Debentures deposited in the Trust as trust assets.
iii
<PAGE> 6
For a description of redemption rights with respect to the Preferred
Securities, the possible dissolution of the Trust and distribution of Junior
Subordinated Debentures held by the Trust to holders of the Trust Securities and
the liquidation amount on the Preferred Securities, see "Special Considerations
Relating to the Offer", "Description of the Preferred Securities -- Special
Event Redemption or Distribution", "-- Liquidation Distribution Upon
Dissolution" and "Description of the Junior Subordinated Debentures".
The Depositary Shares are listed and principally traded on the NYSE under
the symbol "F Pr B". On [ , 1995], the last full day of trading prior
to the first public announcement of the Offer, the closing sales price of the
Depositary Shares on the NYSE as reported on the Composite Tape was [$ ]
per share. The closing sales price of the Depositary Shares on the NYSE on
[ ], 1995 was [$ ] per share. STOCKHOLDERS ARE URGED TO
OBTAIN CURRENT MARKET QUOTATIONS FOR THE DEPOSITARY SHARES. To the extent that
Depositary Shares are tendered and accepted in the Offer, the terms on which
untendered Depositary Shares could subsequently be sold could be adversely
affected. See "Listing and Trading of Preferred Securities and Depositary
Shares".
Ford will pay to Soliciting Dealers (as defined herein) designated by the
record or beneficial owner, as appropriate, of Depositary Shares a solicitation
fee of $0.50 per Depositary Share validly tendered and accepted for exchange
pursuant to the Offer, subject to certain conditions. Soliciting Dealers are not
entitled to a solicitation fee for Depositary Shares beneficially owned by such
Soliciting Dealer. See "The Offer -- Dealer Managers; Soliciting Dealers".
iv
<PAGE> 7
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFER OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS SHOULD NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY FORD, THE TRUST, THE TRUSTEES OR THE
DEALER MANAGERS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY EXCHANGE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF FORD OR THE TRUST SINCE THE RESPECTIVE DATES AS
OF WHICH INFORMATION IS GIVEN HEREIN. THE OFFER IS NOT BEING MADE TO (NOR WILL
TENDERS BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS OF DEPOSITARY SHARES IN ANY
JURISDICTION IN WHICH THE MAKING OF THE OFFER OR THE ACCEPTANCE THEREOF WOULD
NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. HOWEVER, FORD AND THE
TRUST MAY, AT THEIR DISCRETION, TAKE SUCH ACTION AS THEY MAY DEEM NECESSARY TO
MAKE THE OFFER IN ANY SUCH JURISDICTION AND EXTEND THE OFFER TO HOLDERS OF
DEPOSITARY SHARES IN SUCH JURISDICTION. IN ANY JURISDICTION THE SECURITIES LAWS
OR BLUE SKY LAWS OF WHICH REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR
DEALER, THE OFFER IS BEING MADE ON BEHALF OF THE TRUST BY THE DEALER MANAGERS OR
ONE OR MORE REGISTERED BROKERS OR DEALERS WHICH ARE LICENSED UNDER THE LAWS OF
SUCH JURISDICTION.
AVAILABLE INFORMATION
Ford is subject to the information requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports and other information with the Securities and Exchange Commission (the
"Commission"). As used herein, "Ford" refers to Ford Motor Company and its
subsidiaries unless the context otherwise requires. Such reports and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the following Regional Offices of the Commission: 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511; and 7 World Trade Center,
Suite 1300, New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such material can also be inspected
and copied at the offices of the NYSE, 20 Broad Street, New York, New York
10005.
This Prospectus constitutes a part of a registration statement on Form S-4
(together with all amendments and exhibits, the "Registration Statement") filed
by Ford and the Trust with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. The
information so omitted may be obtained from the Commission's principal office in
Washington, D.C. upon payment of the fees prescribed by the Commission.
Statements contained herein concerning the provisions of any document do not
purport to be complete and, in each instance, are qualified in all respects by
reference to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such statement is subject
to and qualified in its entirety by such reference. Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to Ford, the Trust and the securities offered hereby.
No separate financial statements of the Trust have been included or
incorporated by reference herein. Ford and the Trust do not consider that such
financial statements would be material to holders of Preferred Securities
because the Trust is a newly-formed special purpose entity, has no operating
history, has no independent operations and is not engaged in, and does not
propose to engage in, any activity other than its holding as trust assets the
Junior Subordinated Debentures of Ford and its issuance of Trust Securities. The
Trust anticipates that it will not be required to file with the Commission or to
distribute to holders of Preferred Securities periodic reports regarding the
Trust. See "Ford Motor Company Capital Trust I", "Description of the Preferred
Securities", "Description of the Preferred Securities Guarantee" and
"Description of the Junior Subordinated Debentures". The Trust is a statutory
business trust formed under the laws of the State of Delaware. Ford, as of the
date hereof, beneficially owns all of the beneficial interests in the Trust.
1
<PAGE> 8
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Ford's Annual Report on Form 10-K for the year ended December 31, 1994
("Ford's 1994 10-K Report"), Ford's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1995 and June 30, 1995, respectively ("Ford's 10-Q
Reports") and Ford's Current Reports on Form 8-K dated February 1, 1995,
February 7, 1995, April 4, 1995, April 19, 1995 and July 19, 1995 have been
filed with the Commission and are incorporated herein by reference.
All documents filed by Ford pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
Expiration Date shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified and
superseded, to constitute a part of this Prospectus.
Ford undertakes to provide without charge to each person to whom a copy of
this Prospectus has been delivered, on the written or oral request of any such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated by reference in this Prospectus, other than exhibits to
such documents. Written or telephonic requests for such documents should be
directed to Ford Motor Company, The American Road, Dearborn, Michigan 48121,
Attention: Stockholder Relations Department (telephone number 313-845-8540). In
order to assure timely delivery of the documents, any request should be made not
later than five business days prior to the Expiration Date.
------------------------
THIS PROSPECTUS CONTAINS BRIEF SUMMARIES OF CERTAIN MORE DETAILED
INFORMATION CONTAINED IN DOCUMENTS INCORPORATED HEREIN BY REFERENCE. SUCH
SUMMARIES ARE QUALIFIED IN THEIR ENTIRETY BY THE DETAILED INFORMATION CONTAINED
IN THE INCORPORATED DOCUMENTS.
------------------------
The following information, which is being disclosed pursuant to Florida
law, is accurate as of the date of this Prospectus: Autolatina-Comercio,
Negocios e Participacoes Ltda., a Brazilian company ("Autolatina"), is a joint
venture between Ford and Volkswagen AG in which Ford has a 49% ownership
interest. Autolatina occasionally sells vehicles to persons located in Cuba.
Each such sale is made pursuant to a specific license granted to Ford by the
U.S. Department of Treasury. The last such sale, which involved one medical
supply vehicle, was made to Cubanacan in April 1991. Current information
concerning Autolatina's or its Ford-related affiliates' business dealings with
the government of Cuba or with persons located in Cuba may be obtained from the
State of Florida Department of Banking and Finance at The Capitol Building,
Suite 1401, Tallahassee, Florida 32399-0350 (telephone number 904-488-0545).
2
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary.................................................................... 4
Special Considerations Relating to the Offer.......................................... 15
Comparison of Preferred Securities and Depositary Shares.............................. 19
Ford Motor Company.................................................................... 22
Capitalization........................................................................ 23
Selected Financial Data and Other Data of Ford........................................ 24
Financial Review of Ford.............................................................. 25
Industry Data and Market Share of Ford................................................ 28
Ratio of Earnings to Fixed Charges.................................................... 29
Ford Motor Company Capital Trust I.................................................... 29
The Offer............................................................................. 32
Listing and Trading of Preferred Securities and Depositary Shares..................... 40
Transactions and Arrangements Concerning the Offer.................................... 41
Fees and Expenses; Transfer Taxes..................................................... 41
Price Range of Depositary Shares...................................................... 41
Description of the Preferred Securities............................................... 42
Description of the Preferred Securities Guarantee..................................... 52
Description of the Junior Subordinated Debentures..................................... 54
Description of the Series B Preferred and Depositary Shares........................... 61
Relationship Between the Preferred Securities, the Junior Subordinated Debentures and
the Preferred Securities Guarantee.................................................. 64
Taxation.............................................................................. 65
Legal Matters......................................................................... 68
Experts............................................................................... 68
ERISA Matters......................................................................... 69
</TABLE>
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PROSPECTUS SUMMARY
The following summary does not purport to be complete and is qualified in
its entirety by the detailed information contained elsewhere in, or incorporated
by reference in, this Prospectus.
FORD MOTOR COMPANY
Ford was incorporated in Delaware in 1919 and acquired the business of a
Michigan company, also known as Ford Motor Company, incorporated in 1903 to
produce automobiles designed and engineered by Henry Ford. Ford is the
second-largest producer of cars and trucks in the world, and ranks among the
largest providers of financial services in the United States.
Ford's two principal business segments are Automotive and Financial
Services. The activities of the Automotive segment consist of the design,
manufacture, assembly and sale of cars and trucks and related parts and
accessories. Substantially all of Ford's automotive products are marketed
through retail dealerships, most of which are privately owned and financed.
The Financial Services segment is comprised of the following direct
subsidiaries, the activities of which include financing operations, vehicle and
equipment leasing and insurance operations: Ford Motor Credit Company ("Ford
Credit"), Ford Credit Europe plc ("Ford Credit Europe"), Ford Holdings, Inc.
("Ford Holdings"), The Hertz Corporation ("Hertz") and Granite Management
Corporation (formerly First Nationwide Financial Corporation) ("Granite"). Ford
Holdings is a holding company that owns primarily Associates First Capital
Corporation ("The Associates"), USL Capital Corporation (formerly United States
Leasing International, Inc.)("USL Capital") and The American Road Insurance
Company ("American Road"). In addition, there are a number of international
affiliates not listed above that are consolidated in the total Financial
Services results, but are managed by either Ford Credit (which manages Ford
Credit Europe, as well as other international affiliates), The Associates or USL
Capital.
FORD MOTOR COMPANY CAPITAL TRUST I
Ford Motor Company Capital Trust I is a statutory business trust that was
formed under the Delaware Business Trust Act (the "Business Trust Act") on
September 19, 1995. The Trust's original declaration of trust will be amended
and restated in its entirety as of the date the Trust accepts Depositary Shares
in the Offer (as so amended and restated, the "Declaration") substantially in
the form filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. See "The Offer -- Terms of the Offer" and "--
Acceptance of Shares and Proration" for information regarding the Trust's
acceptance of Depositary Shares in the Offer. The Declaration will be qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
Upon issuance of the Preferred Securities, the holders thereof will own all the
issued and outstanding Preferred Securities. Ford has agreed to acquire Common
Securities in an amount equal to at least 3% of the total capital of the Trust
and will own, directly or indirectly, all the issued and outstanding Common
Securities. The Preferred Securities and the Common Securities will have
equivalent terms; provided that (i) if an Event of Default under the Declaration
occurs and is continuing, the holders of Preferred Securities will have a
priority over the holders of the Common Securities with respect to payments of
distributions and payments upon liquidation, redemption or otherwise and (ii)
holders of Common Securities have the exclusive right (subject to the terms of
the Declaration) to appoint, replace or remove Trustees and to increase or
decrease the number of Trustees.
The number of trustees (the "Trustees") of the Trust shall initially be
five. Three of the Trustees (the "Regular Trustees") are individuals who are
employees or officers of Ford. The fourth trustee is The Bank of New York (the
"Institutional Trustee"), which will act as the indenture trustee under the
Declaration for purposes of the Trust Indenture Act and will serve as the
Indenture Trustee (as defined herein) under the Indenture (as defined herein)
for the Junior Subordinated Debentures and the Guarantee Trustee (as defined
herein) under the Preferred Securities Guarantee. The fifth trustee is The Bank
of New York (Delaware) (the "Delaware Trustee"), which has its principal place
of business in the State of Delaware. Pursuant to the Declaration, the
Institutional Trustee will have the power to exercise all rights, powers and
privileges under the Indenture pursuant to which the Junior Subordinated
Debentures will be issued. The Institutional Trustee,
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acting on behalf of the Trust, will promptly make distributions to the holders
of the Trust Securities out of funds in the Trust. The Preferred Securities
Guarantee, which will be separately qualified under the Trust Indenture Act,
will be held by The Bank of New York, acting in its separate capacity as
indenture trustee with respect to the Preferred Securities Guarantee, for the
benefit of the holders of the Preferred Securities. As used in this Prospectus,
the term "Institutional Trustee" refers to The Bank of New York acting either in
its capacity as the trustee under the Declaration or in its capacity as
indenture trustee under, and the holder of, the Preferred Securities Guarantee,
as the context may require.
The Trust exists for the purpose of (a) issuing (i) its Preferred
Securities in exchange for Depositary Shares validly tendered in the Offer and
delivering such Depositary Shares to Ford in consideration for the deposit by
Ford of Junior Subordinated Debentures, having an aggregate stated principal
amount equal to the aggregate stated liquidation amount of such Preferred
Securities, in the Trust as trust assets, and (ii) its Common Securities to Ford
in exchange for cash and investing the proceeds thereof in an equivalent amount
of Junior Subordinated Debentures and (b) engaging in such other activities as
are necessary and incidental thereto. The rights of the holders of the Trust
Securities, including economic rights, rights to information and voting rights,
are as set forth in the Declaration, the Business Trust Act and the Trust
Indenture Act. See "Ford Motor Company Capital Trust I" and "Description of the
Preferred Securities". The Declaration does not permit the incurrence by the
Trust of any indebtedness for borrowed money or the making of any investment
other than in the Junior Subordinated Debentures. In the Declaration, Ford has
agreed to pay for all debts and obligations (other than with respect to the
Trust Securities) and all costs and expenses of the Trust, including the fees
and expenses of the Trustees and any income taxes, duties and other governmental
charges, and all costs and expenses with respect thereto, to which the Trust may
become subject, except for United States withholding taxes. See "Special
Considerations Relating to the Offer", "Ford Motor Company Capital Trust I" and
"Description of the Preferred Securities".
CERTAIN POTENTIAL BENEFITS AND RISKS TO INVESTORS
Prospective investors should carefully review the information contained
elsewhere in this Prospectus prior to making a decision regarding the Offer and
should particularly consider the following matters:
POTENTIAL BENEFITS TO EXCHANGING HOLDERS
- The cash distributions rate on the Preferred Securities will be [ ]
basis points greater than the dividend rate on the Depositary Shares. See
"Comparison of Preferred Securities and Depositary Shares".
- Although the obligations of Ford under the Junior Subordinated Debentures
and the Preferred Securities Guarantee are unsecured and will be subordinated
and junior in right of payment to all Senior Indebtedness of Ford, they will be
senior to all capital stock of Ford now or hereafter issued by Ford (including
the Depositary Shares).
- While no dividends are required to be paid with respect to the Depositary
Shares, interest payments on the Junior Subordinated Debentures and therefore
distributions on the Preferred Securities may not be deferred for more than 20
consecutive quarterly interest periods. Any Extension Period with respect to
payment of interest on the Junior Subordinated Debentures, other debt securities
of Ford under the Indenture or on any similar securities will apply to all such
securities and will also apply to distributions with respect to the Preferred
Securities and all other securities with similar terms. Moreover, Ford may defer
interest payments on the Junior Subordinated Debentures only if it does not
declare or pay dividends on, or redeem, purchase, acquire or make a distribution
or liquidation payment with respect to, any of its common stock or preferred
stock (except under certain circumstances). See "Description of the Preferred
Securities". However, to date, Ford has made each quarterly dividend payment
with respect to the Depositary Shares on the scheduled dividend payment date,
and dividends on the Series B Preferred accrue whether or not such dividends are
declared. See "Description of the Series B Preferred and Depositary Shares --
Dividends".
- The Offer will allow Ford to achieve certain tax efficiencies because, in
contrast to dividend payments with respect to the Depositary Shares which are
not deductible by Ford, Ford will be able to deduct interest
5
<PAGE> 12
payments on the Junior Subordinated Debentures for United States federal income
tax purposes. See "The Offer -- Purpose of the Offer".
- So long as payments of interest and other payments are made when due on
the Junior Subordinated Debentures, such payments will be sufficient to cover
cash distributions and other payments made on the Preferred Securities (and the
Common Securities) because (i) the aggregate principal amount of Junior
Subordinated Debentures deposited as trust assets will be equal to the sum of
(x) the aggregate stated liquidation amount of the Preferred Securities issued
by the Trust in exchange for the Depositary Shares accepted in the Offer and (y)
the amount of proceeds received by the Trust from the issuance of the Common
Securities to Ford, which proceeds will be used by the Trust to purchase an
equal principal amount of Junior Subordinated Debentures, (ii) the interest rate
and interest and other payment dates on the Junior Subordinated Debentures will
match the distribution rate and distribution and other payment dates for the
Preferred Securities, (iii) the Declaration provides that Ford shall pay for all
debts and obligations (other than with respect to the Trust Securities) and all
costs and expenses of the Trust, and (iv) the Declaration further provides that
the Trustees shall not permit the Trust to, among other things, engage in any
activity that is not consistent with the purposes of the Trust. See "Ford Motor
Company Capital Trust I", "Description of Preferred Securities", "Description of
the Junior Subordinated Debentures" and "Relationship Between the Preferred
Securities, the Junior Subordinated Debentures and the Preferred Securities
Guarantee".
- The Trust will have no independent operations and will exist for the sole
purpose of effecting the Offer and issuing the Trust Securities as described
herein and owning and holding the Junior Subordinated Debentures. See "Ford
Motor Company Capital Trust I".
- The Institutional Trustee will have the power to exercise all rights,
powers and privileges under the Indenture with respect to the Junior
Subordinated Debentures, including its rights to enforce Ford's obligations
under the Junior Subordinated Debentures upon the occurrence of an Indenture
Event of Default, and will also have the right to enforce the Preferred
Securities Guarantee on behalf of the holders of the Preferred Securities. In
addition, the holders of the Preferred Securities will have certain rights to
direct the Institutional Trustee with respect to certain matters under the
Declaration and the Preferred Securities Guarantee. If the Institutional Trustee
fails to enforce its rights under the Indenture or fails to enforce the
Preferred Securities Guarantee, any holder of Preferred Securities may institute
a legal proceeding against Ford to enforce such rights or the Preferred
Securities Guarantee, as the case may be. See "Description of the Preferred
Securities" and "Description of the Preferred Securities Guarantee".
POTENTIAL RISKS TO EXCHANGING HOLDERS
- Participation in the Offer will be a taxable event for holders of
Depositary Shares. See "Special Considerations Relating to the Offer -- Exchange
of Depositary Shares for Preferred Securities is a Taxable Event".
- The obligations of Ford under (i) the Junior Subordinated Debentures and
the Preferred Securities Guarantee are subordinate in right of payment to all
Senior Indebtedness (as defined herein) of Ford, except obligations or
securities made pari passu or subordinate by their terms, and (ii) the Preferred
Securities Guarantee is also subordinate in right of payment to the Junior
Subordinated Debentures. See "Special Considerations Relating to the Offer --
Ranking of Subordinated Obligations under Preferred Securities Guarantee and
Junior Subordinated Debentures"; and "-- Trust Distributions Dependent on Ford's
Payments on Junior Subordinated Debentures".
- If Ford were to default in its obligation to pay amounts payable on the
Junior Subordinated Debentures, the Trust would lack available funds for the
payment of distributions or amounts payable on redemption of the Preferred
Securities or otherwise. In addition, the interest payment period on the Junior
Subordinated Debentures may be extended under certain circumstances by Ford, in
its sole discretion, for up to 20 consecutive quarterly interest periods. See
"Special Considerations Relating to the Offer -- Ranking of Subordinated
Obligations under Preferred Securities Guarantee and Junior Subordinated
Debentures"; "-- Trust Distributions Dependent on Ford's Payments on Junior
Subordinated Debentures"; "-- Ford May
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<PAGE> 13
Defer Interest Payments on Junior Subordinated Debentures"; "-- Tax Consequences
of Extension of Interest Payment Periods"; and "-- Potential Market Volatility
During Extension Period".
- Should Ford not make interest or other payments on the Junior
Subordinated Debentures for any reason, including as a result of Ford's election
to defer payments of interest on the Junior Subordinated Debentures by extending
the interest payment period on the Junior Subordinated Debentures, the Trust
will not make distributions or other payments on the Trust Securities. In such
an event, holders of the Preferred Securities would not be able to rely on the
Preferred Securities Guarantee since the Preferred Securities Guarantee covers
distributions and other payments on the Preferred Securities only if and to the
extent that Ford has made a payment to the Trust of interest or principal on the
Junior Subordinated Debentures deposited in the Trust as trust assets. See
"Special Considerations Relating to the Offer -- Trust Distributions Dependent
on Ford's Payments on Junior Subordinated Debentures".
- If Ford elects to defer payments of interest on the Junior Subordinated
Debentures by extending the interest period on the Junior Subordinated
Debentures, distributions on the Preferred Securities would also be deferred but
the Trust would continue to accrue interest income (as original issue discount)
in respect of such Junior Subordinated Debentures which would be taxable to
beneficial owners of Preferred Securities. As a result, beneficial owners of
Preferred Securities during an Extension Period would include their pro rata
share of the interest in gross income in advance of the receipt of cash. See
"Special Considerations Relating to the Offer -- Tax Consequences of Extension
of Interest Payment Periods".
- Holders of Preferred Securities will have limited voting rights and will
not be able to appoint, remove or replace, or to increase or decrease the number
of, Trustees, which rights are vested exclusively in the Common Securities. See
"Special Considerations Relating to the Offer -- Limited Voting Rights";
"Description of the Preferred Securities Limited Voting Rights". Holders of
Depositary Shares also have limited voting rights. However, with certain
exceptions, in the event that dividends on all series of preferred stock,
including the Series B Preferred, are in arrears and unpaid for such number of
dividend periods which shall in the aggregate contain not less than 540 days,
the Board of Directors of Ford is required to be increased by two directors and
the holders of Series B Preferred, together with the holders of all other series
of preferred stock then entitled to vote thereon, shall be entitled to elect two
directors of the expanded board of directors. See "Description of Series B
Preferred and Depositary Shares -- Voting".
- The Depositary Shares are redeemable on or after December 1, 2002, in
whole or in part, provided that Ford shall have issued an equivalent amount of
its common stock within the prior two years. The Preferred Securities are
redeemable on or after December 1, 2002, in whole or in part. Ford has issued
approximately $1.3 billion of its common stock between December 31, 1992 and
June 30, 1995.
- While the Depositary Shares are not redeemable prior to December 1, 2002,
the Junior Subordinated Debentures (and thus the Preferred Securities) in
certain circumstances will be redeemable prior to that date upon the occurrence
of a Tax Event (as defined herein). See "Special Considerations Relating to the
Offer -- Special Event Redemption or Distribution".
- While dividends with respect to Depositary Shares are eligible for the
dividends received deduction for corporate holders, distributions on the
Preferred Securities are not eligible for the dividends received deduction for
corporate holders.
- While application will be made to list the Preferred Securities on the
NYSE, the Preferred Securities are a new issue of securities with no established
trading market. In addition, liquidity of the Preferred Securities will be
affected by the number of Depositary Shares exchanged in the Offer. See "Special
Considerations Relating to the Offer -- Lack of Established Trading Market for
Preferred Securities" and "-- Reduced Trading Market for Depositary Shares".
- Under certain circumstances, Junior Subordinated Debentures could be
distributed to holders of Preferred Securities. In such event, the Trust would
be dissolved and the holders would become holders of Junior Subordinated
Debentures. While Ford will use its best efforts in such a situation to have the
Junior Subordinated Debentures listed on the NYSE, there is no guarantee that
such listing will take place or that a
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<PAGE> 14
market will exist for such Junior Subordinated Debentures. See "Special
Considerations Relating to the Offer -- Special Event Redemption or
Distribution."
POTENTIAL RISK TO NON-EXCHANGING HOLDERS
- The liquidity and trading market for untendered Depositary Shares could
be adversely affected to the extent Depositary Shares are tendered and accepted
in the Offer. See "Special Considerations Relating to the Offer -- Reduced
Trading Market for Depositary Shares".
- The Junior Subordinated Debentures and the Preferred Securities Guarantee
will rank senior in right of payment to the untendered Depositary Shares. See
"Special Considerations Relating to the Offer -- Ranking of Subordinated
Obligations Under Preferred Securities Guarantee and Junior Subordinated
Debentures".
THE OFFER
PURPOSE OF THE OFFER
The purpose of the Offer is to refinance the Depositary Shares with the
Preferred Securities and to achieve certain tax efficiencies while preserving
Ford's flexibility with respect to future financings. This refinancing will
permit Ford to deduct interest payable on the Junior Subordinated Debentures for
United States federal income tax purposes; dividends payable on the Depositary
Shares are not deductible. See "The Offer -- Purpose of the Offer".
TERMS OF THE OFFER
Upon the terms and subject to the conditions set forth herein and in the
Letter of Transmittal, the Trust
hereby offers to exchange its Preferred Securities for up to 44,600,000 of the
outstanding Depositary Shares of Ford. Exchanges will be made on the basis of
one Preferred Security for each Depositary Share validly tendered and accepted
for exchange in the Offer. See "The Offer -- Terms of the Offer".
EXPIRATION DATE; WITHDRAWALS
Upon the terms and conditions of the Offer, including the provisions
relating to proration described herein, the Trust will accept for exchange up to
44,600,000 Depositary Shares validly tendered and not withdrawn prior to 12:00
Midnight, New York City time, on , 1995, or if the Offer is extended
by the Trust, in its sole discretion, the latest date and time to which the
Offer has been extended (the "Expiration Date"). Tenders of Depositary Shares
pursuant to the Offer may be withdrawn at any time prior to the Expiration Date
and, unless accepted for exchange by the Trust, may be withdrawn at any time
after 40 Business Days (as defined herein) after the date of this Prospectus.
Depositary Shares not accepted because of proration will be returned to the
tendering holders at the Trust's expense as promptly as practicable following
the Expiration Date. A "Business Day" shall mean any day other than a day on
which banking institutions in The City of New York are authorized or required by
law to close. See "The Offer -- Expiration Date; Extensions; Amendments;
Termination", "-- Withdrawal of Tenders" and "-- Acceptance of Shares and
Proration". Tenders must be made to the Exchange Agent in order to be valid.
CONDITIONS TO THE OFFER; EXTENSIONS; AMENDMENTS; TERMINATION
Consummation of the Offer is conditioned on, among other things, (i)
receipt of at least 12,000,000 validly tendered Depositary Shares, which
condition may be waived by the Trust, and (ii) tenders by a sufficient number of
holders of Depositary Shares to meet the Minimum Distribution Condition, which
condition may not be waived. See "The Offer -- Conditions to the Offer" and "--
Expiration Date; Extensions; Amendments; Termination".
The Trust expressly reserves the right, in its sole discretion, subject to
applicable law, to (i) terminate the Offer, and not accept for exchange any
Depositary Shares and promptly return all Depositary Shares, upon the
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<PAGE> 15
failure of any of the conditions specified above, (ii) waive any condition to
the Offer (other than the Minimum Distribution Condition) and accept all
Depositary Shares previously tendered pursuant to the Offer, (iii) extend the
Expiration Date of the Offer and retain all Depositary Shares tendered pursuant
to the Offer until the Expiration Date, subject, however, to all withdrawal
rights of holders, see "The Offer -- Withdrawal of Tenders", (iv) amend the
terms of the Offer or (v) modify the form of the consideration to be paid
pursuant to the Offer. Any amendment applicable to the Offer will apply to all
Depositary Shares tendered pursuant to the Offer. The minimum period during
which the Offer must remain open following material changes in the terms of the
Offer or the information concerning the Offer, other than a change in the
percentage of securities sought or the price, depends upon the facts and
circumstances, including the relative materiality of such terms or information.
See "The Offer -- Conditions to the Offer" and "-- Expiration Date; Extensions;
Amendments; Termination".
PROCEDURES FOR TENDERING
Each Holder of Depositary Shares wishing to participate in the Offer must
(i) properly complete and sign the Letter of Transmittal or a facsimile thereof
(all references in this Prospectus to the Letter of Transmittal shall be deemed
to include a facsimile thereof) in accordance with the instructions contained
herein and in the Letter of Transmittal, together with any required signature
guarantees, and deliver the same to Chemical Bank, as Exchange Agent, at one of
its addresses set forth on the back cover page hereof, prior to the Expiration
Date and either (a) certificates for the Depositary Shares must be received by
the Exchange Agent at such address or (b) such Depositary Shares must be
transferred pursuant to the procedures for book-entry transfer described herein
and a confirmation of such book-entry transfer must be received by the Exchange
Agent, in each case prior to the Expiration Date, or (ii) comply with the
guaranteed delivery procedures described herein. See "The Offer -- Procedures
for Tendering".
IN ORDER TO PARTICIPATE IN THE OFFER, HOLDERS OF DEPOSITARY SHARES MUST
SUBMIT A LETTER OF TRANSMITTAL AND COMPLY WITH THE OTHER PROCEDURES FOR
TENDERING IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN THE LETTER
OF TRANSMITTAL PRIOR TO THE EXPIRATION DATE.
LETTERS OF TRANSMITTAL, DEPOSITARY SHARES AND ANY OTHER REQUIRED DOCUMENTS
SHOULD BE SENT ONLY TO THE EXCHANGE AGENT -- -- NOT TO FORD, THE TRUST, THE
DEALER MANAGERS OR THE INFORMATION AGENT.
SPECIAL PROCEDURE FOR BENEFICIAL OWNERS
Any beneficial owner whose Depositary Shares are registered in the name of
a broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender such Depositary Shares should contact such registered Holder promptly
and instruct such registered Holder to tender on such beneficial owner's behalf.
If such beneficial owner wishes to tender on its own behalf, such owner must,
prior to completing and executing a Letter of Transmittal and delivering its
Depositary Shares, either make appropriate arrangements to register ownership of
the Depositary Shares in such owner's name or obtain a properly completed stock
power from the registered Holder. The transfer of registered ownership may take
considerable time and may not be able to be completed prior to the Expiration
Date. See "The Offer -- Procedures for Tendering -- Special Procedure for
Beneficial Owners".
GUARANTEED DELIVERY PROCEDURES
If a Holder desires to accept the Offer and time will not permit a Letter
of Transmittal or Depositary Shares to reach the Exchange Agent before the
Expiration Date or the procedure for book-entry transfer cannot be completed on
a timely basis, a tender may be effected in accordance with the guaranteed
delivery procedures set forth in "The Offer -- Procedures for Tendering --
Guaranteed Delivery".
ACCEPTANCE OF SHARES AND PRORATION
Upon the terms and subject to the conditions of the Offer, including the
Minimum Distribution Condition, if 44,600,000 or fewer Depositary Shares have
been validly tendered and not withdrawn prior to the
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<PAGE> 16
Expiration Date, the Trust will accept for exchange all such Depositary Shares.
Upon the terms and subject to the conditions of the Offer, if more than
44,600,000 Depositary Shares (or, if decreased as described herein, such lesser
number as the Trust may elect to purchase pursuant to the Offer) have been
validly tendered and not withdrawn prior to the Expiration Date, the Trust will
accept for exchange Depositary Shares from each tendering Holder on a pro rata
basis, subject to adjustment to avoid the acceptance for exchange of fractional
shares.
If the Trust decides, in its sole discretion, to increase or decrease the
number of Depositary Shares sought in the Offer or to increase or decrease the
consideration offered to holders of Depositary Shares, and if the Offer is
scheduled to expire less than ten Business Days from and including the date that
notice of such increase or decrease is first published, sent or given in the
manner specified in "The Offer -- Terms of the Offer" and "-- Expiration Date;
Extensions; Amendments; Termination", then the Offer will remain open for a
minimum of ten Business Days from and including the date of such notice.
All Depositary Shares not accepted pursuant to the Offer, including shares
not purchased because of proration, will be returned to the tendering Holders at
the Trust's expense as promptly as practicable following the Expiration Date.
DELIVERY OF PREFERRED SECURITIES
Subject to the terms and conditions of the Offer, the delivery of the
Preferred Securities to be issued pursuant to the Offer will occur as promptly
as practicable following the Expiration Date. See "The Offer -- Terms of the
Offer" and "-- Expiration Date; Extensions; Amendments; Termination".
If proration of tendered Depositary Shares is required, because of the
difficulty in determining the number of Depositary Shares validly tendered
(including shares tendered by the guaranteed delivery procedures described in
"The Offer -- Procedures for Tendering"), the Trust does not expect that it
would be able to announce the final proration factor or to commence the exchange
for any shares of Depositary Shares pursuant to the Offer until approximately
five Business Days after the Expiration Date. Preliminary results of the
proration will be announced by press release as promptly as practicable after
the Expiration Date. Holders of Depositary Shares may obtain such preliminary
information from the Dealer Managers or the Information Agent and may also be
able to obtain such information from their brokers.
Until the final proration factors are known, the Trust will not issue any
Preferred Securities in exchange for any Depositary Shares accepted for exchange
pursuant to the Offer or return Depositary Shares delivered to the Exchange
Agent but not tendered or return Depositary Shares tendered but not accepted for
exchange because of proration.
DESCRIPTION OF PREFERRED SECURITIES AND JUNIOR SUBORDINATED DEBENTURES
The Preferred Securities evidence preferred undivided beneficial interests
in the assets of the Trust and will have terms equivalent to the Common
Securities; provided that (i) if an Event of Default under the Declaration
occurs and is continuing, the holders of Preferred Securities will have a
priority over holders of the Common Securities with respect to payments in
respect of distributions and payments upon liquidation, redemption or otherwise
and (ii) holders of Common Securities have the exclusive right (subject to the
terms of the Declaration) to appoint, remove and replace Trustees and to
increase or decrease the number of Trustees. The Declaration does not permit the
issuance by the Trust of any securities or beneficial interests in the assets of
the Trust other than the Preferred Securities and the Common Securities, the
incurrence of any indebtedness for borrowed money by the Trust or the making of
any investments other than in the Junior Subordinated Debentures. The
Declaration defines an event of default with respect to the Trust Securities (an
"Event of Default") as, among other things, the occurrence and continuance of an
"event of default" under the Indenture with respect to the Junior Subordinated
Debentures (an "Indenture Event of Default").
Periodic cash distributions on each Preferred Security will be fixed at a
rate per annum of [ %] of the stated liquidation amount of $25 per Preferred
Security. Distributions in arrears will bear interest thereon at the rate per
annum of [ %], compounded quarterly to the extent permitted by applicable law.
Distributions
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on the Preferred Securities will be cumulative, will accrue from the Accrual
Date and, except as otherwise described herein, will be made quarterly in
arrears, on the last day of March, June, September and December of each year,
commencing on December 31, 1995, but only if and to the extent that interest
payments are made in respect of the Junior Subordinated Debentures held by the
Trust. In addition, holders of Preferred Securities will be entitled to an
additional cash distribution at the rate of 8.25% per annum of the liquidation
amount thereof from [ ] through the Expiration Date in lieu of
dividends accumulating and unpaid after [ ] on their Depositary Shares
accepted for exchange, such additional distribution to be made on December 31,
1995 to holders of the Preferred Securities on the record date for such
distribution.
The distribution rate and the distribution and other payment dates for the
Preferred Securities will correspond to the interest rate and the interest and
other payment dates on the Junior Subordinated Debentures deposited in the Trust
as trust assets. As a result, if principal or interest is not paid on the Junior
Subordinated Debentures, including as a result of Ford's election to extend the
interest payment period on the Junior Subordinated Debentures as described
below, the Trust will not make payments on the Trust Securities. The Junior
Subordinated Debentures provide that, so long as Ford shall not be in default in
the payment of interest on the Junior Subordinated Debentures, Ford has the
right under the Indenture to defer payments of interest on the Junior
Subordinated Debentures by extending the interest payment period from time to
time on the Junior Subordinated Debentures for an Extension Period and, as a
consequence, quarterly distributions on the Preferred Securities would not be
made (but would continue to accrue with interest thereon at the rate of [ %]
per annum, compounded quarterly to the extent permitted by applicable law) by
the Trust during any such Extension Period. During an Extension Period, Ford may
not declare or pay dividends on, or redeem, purchase, acquire or make a
distribution or liquidation payment with respect to, any of its common stock or
preferred stock or make any guarantee payments with respect thereto or any other
securities similar to the Preferred Securities or the Junior Subordinated
Debentures; provided that Ford will be permitted to pay dividends (and cash in
lieu of fractional shares) upon the conversion, other than at the option of
Ford, of any of its preferred stock, including Series A Cumulative Convertible
Preferred Stock, in accordance with the terms of such stock. Any Extension
Period with respect to payment of interest on the Junior Subordinated
Debentures, other debt securities of Ford under the Indenture or on any similar
securities will apply to all such securities and will also apply to
distributions with respect to the Preferred Securities and all other securities
with similar terms. Prior to the termination of any such Extension Period, Ford
may further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed 20
consecutive quarterly interest periods. Upon the termination of any Extension
Period and the payment of all amounts then due, Ford may commence a new
Extension Period, subject to the above requirements. Ford may also prepay at any
time all or any portion of the interest accrued during an Extension Period.
Consequently, there could be multiple Extension Periods of varying lengths (up
to six Extension Periods of 20 consecutive quarterly interest periods each or
more numerous shorter Extension Periods) throughout the term of the Junior
Subordinated Debentures, provided that no Extension Period may extend beyond the
maturity of the Junior Subordinated Debentures. See "Special Considerations
Relating to the Offer", "-- Trust Distributions Dependent on Ford's Payments on
Junior Subordinated Debentures" and "-- Ford May Defer Interest Payments on
Junior Subordinated Debentures" and "Description of the Junior Subordinated
Debentures -- Interest" and "-- Option to Extend Interest Payment Period".
Ford shall give the Institutional Trustee notice of its selection of such
Extension Period one Business Day prior to the earlier of (i) ten Business Days
the date the distributions on the Preferred Securities are payable or (ii) the
date the Trust is required to give notice to the NYSE or other applicable
self-regulatory organization or to holders of the Preferred Securities of the
record date or the date such distribution is payable, but in any event not less
than one Business Day prior to such record date. The Trust shall give notice of
Ford's selection of such Extension Period to the holders of the Preferred
Securities. See "Description of the Junior Subordinated Debentures -- Option to
Extend Interest Payment Period".
There will be deposited in the Trust as trust assets (i) Junior
Subordinated Debentures having an aggregate principal amount equal to the
aggregate stated liquidation amount of the Preferred Securities issued by the
Trust in exchange for the Depositary Shares accepted in the Offer and (ii)
Junior Subordinated Debentures having an aggregate principal amount equal to the
amount of proceeds received by the Trust from
11
<PAGE> 18
the sale of the Common Securities to Ford. Under the Declaration, if and to the
extent Ford does make interest payments on the Junior Subordinated Debentures
deposited in the Trust as trust assets, the Institutional Trustee is obligated
to make distributions promptly on the Preferred Securities. The payment of
distributions on the Preferred Securities and payments on liquidation of the
Trust and the redemption of Preferred Securities, as set forth below, in each
case out of moneys held by the Trust, are guaranteed by Ford on a subordinated
basis as and to the extent set forth under "Description of the Preferred
Securities Guarantee". The Preferred Securities Guarantee is a full and
unconditional guarantee from the time of issuance of the Preferred Securities,
but the Preferred Securities Guarantee covers distributions and other payments
on the Preferred Securities only if and to the extent that Ford has made a
payment to the Trust of interest or principal on the Junior Subordinated
Debentures deposited in the Trust as trust assets. Notwithstanding such
limitation, the Preferred Securities Guarantee, when taken together with Ford's
obligations under the Junior Subordinated Debentures and its obligation to pay
costs, expenses and certain liabilities of the Trust pursuant to the
Declaration, constitutes a full and unconditional guarantee of amounts due on
the Preferred Securities.
The Preferred Securities and Common Securities are redeemable on a Pro Rata
Basis (as defined below) from time to time, in whole or in part, to the same
extent as the Junior Subordinated Debentures are redeemed by Ford, at any time
on or after December 1, 2002, upon not less than 10 nor more than 60 days'
notice, at $25 per Preferred Security plus accrued and unpaid distributions
thereon to the date of redemption (the "Redemption Price"), including
distributions accrued as a result of Ford's election to defer payments of
interest on the Junior Subordinated Debentures, payable in cash. The Preferred
Securities will be redeemed upon the maturity or earlier redemption of the
Junior Subordinated Debentures. See "Description of the Preferred Securities --
Mandatory Redemption". As used in this Prospectus, the term "Pro Rata Basis"
shall mean pro rata to each holder of Trust Securities according to the
aggregate liquidation amount of the Trust Securities held by the relevant holder
in relation to the aggregate liquidation amount of all Trust Securities
outstanding unless, in relation to a payment, an Event of Default under the
Declaration has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each holder of the Preferred Securities
pro rata according to the aggregate liquidation amount of the Preferred
Securities held by the relevant holder in relation to the aggregate liquidation
amount of all Preferred Securities outstanding, and, only after satisfaction of
all amounts owed to the holders of the Preferred Securities, to each holder of
Common Securities pro rata according to the aggregate liquidation amount of the
Common Securities held by the relevant holder in relation to the aggregate
liquidation amount of all the Common Securities outstanding.
In addition, upon the occurrence and during the continuation of a Tax Event
or an Investment Company Event (each as hereinafter defined) arising from a
change in law or a change in legal interpretation or other specified
circumstances, the Trust shall, unless the Junior Subordinated Debentures are
redeemed in the limited circumstances described below and subject to certain
other limited exceptions, be dissolved, with the result that the Junior
Subordinated Debentures will be distributed to the holders of the Preferred
Securities and the Common Securities on a Pro Rata Basis, in lieu of any cash
distribution. In the case of a Tax Event, Ford will have the right in certain
circumstances to redeem the Junior Subordinated Debentures at any time, in which
event the Trust will redeem the Trust Securities on a Pro Rata Basis to the same
extent as the Junior Subordinated Debentures are redeemed. If the Junior
Subordinated Debentures are distributed to the holders of the Preferred
Securities, Ford will use its best efforts to have the Junior Subordinated
Debentures listed on the NYSE or on such other exchange as the Preferred
Securities are then listed. See "Description of the Preferred Securities --
Special Event Redemption or Distribution".
The Junior Subordinated Debentures will be issued pursuant to an indenture,
to be dated as of [ ], 1995 (as supplemented by the First
Supplemental Indenture (the "First Supplemental Indenture") to be dated as of
[ ], 1995, (the "Indenture")) between Ford and
[ ] as trustee (the "Indenture Trustee"). See
"Description of the Junior Subordinated Debentures". The Junior Subordinated
Debentures will mature on December 31, 2025 and will bear interest at an annual
rate of [ %] from the Accrual Date. Interest will be payable quarterly in
arrears on the last day of March, June, September and December of each year,
commencing on December 31, 1995; provided that, as described above, so long as
Ford shall not be in default in the payment of interest on the Junior
Subordinated Debentures, Ford shall have the right
12
<PAGE> 19
to extend the interest payment period from time to time for a period not
exceeding 20 consecutive quarterly interest periods. Ford has no current
intention of exercising its right to extend an interest payment period. However,
should Ford determine to exercise such right in the future, the market price of
the Preferred Securities is likely to be affected. See "Special Considerations
Relating to the Offer" and "Description of the Junior Subordinated Debentures --
Option to Extend Interest Payment Period".
The Junior Subordinated Debentures will also accrue interest at the rate of
8.25% per annum of the principal amount thereof from [ ]
through the Expiration Date, payable at the time of the first interest payment
on the Junior Subordinated Debentures to holders of the Junior Subordinated
Debentures on the record date for such distribution. No extension of interest
will be permitted with respect to interest accruing from [ ]
through the Expiration Date.
Ford shall have the right to redeem the Junior Subordinated Debentures, in
whole or in part, from time to time, on or after December 1, 2002, upon not less
than 10 nor more than 60 days' notice, at a redemption price equal to 100% of
the principal amount to be redeemed, plus any accrued and unpaid interest to the
redemption date, including interest accrued as a result of Ford's election to
defer payments of interest on the Junior Subordinated Debentures, payable in
cash. In addition, upon the occurrence of a Tax Event, Ford will also have the
right if certain conditions are met to redeem the Junior Subordinated Debentures
at any time. If Ford redeems the Junior Subordinated Debentures, then the Trust
will redeem the Trust Securities on a Pro Rata Basis to the same extent as the
Junior Subordinated Debentures are redeemed.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The exchange of Depositary Shares for Preferred Securities pursuant to the
Offer will be a taxable event. Gain or loss generally will be recognized in an
amount equal to the difference between the fair market value on the Expiration
Date of the holder's pro rata share of the Junior Subordinated Debentures
represented by the Preferred Securities received in the exchange and the
exchanging Holder's tax basis in the Depositary Shares surrendered. For this
purpose, the fair market value of the Junior Subordinated Debentures deemed
issued in exchange for Depositary Shares on the Expiration Date will equal the
fair market value of the Preferred Securities on that date. See "Taxation --
Exchange of Depositary Shares for Preferred Securities".
The Junior Subordinated Debentures will be treated as issued with "original
issue discount" for United States federal income tax purposes. Holders of
Preferred Securities (each a "Securityholder") will be required to include their
pro rata share of original issue discount in gross income as it accrues on the
Junior Subordinated Debentures in advance of the receipt of cash. Generally, all
of a Securityholder's taxable interest income with respect to the Junior
Subordinated Debentures will be accounted for as "original issue discount" and
actual distributions of stated interest will not be separately reported as
taxable income. See "Taxation -- Accrual of Original Issue Discount and Premium"
and "-- Potential Extension of Payment Period on the Junior Subordinated
Debentures".
While dividends on the Series B Preferred are eligible for the dividends
received deduction for corporate holders, dividends on the Preferred Securities
are not eligible for the dividends received deduction for corporate holders.
The Preferred Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying Junior
Subordinated Debentures. A Securityholder who disposes of his Preferred
Securities and does not receive a payment of interest from the Trust for the
period in which the disposition occurs will nevertheless be required to include
accrued but unpaid interest on the Junior Subordinated Debentures through the
date of disposition in income as ordinary income, and to add such amount to the
adjusted tax basis in his pro rata share of the underlying Junior Subordinated
Debentures deemed disposed of. Accordingly, such a Securityholder will recognize
a capital loss to the extent the selling price (which may not fully reflect the
value of accrued but unpaid interest) is less than the Securityholder's adjusted
tax basis (which will include accrued but unpaid interest). Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
13
<PAGE> 20
ACCOUNTING FOR EXCHANGE
The refinancing of the Series B Preferred with the Preferred Securities may
increase or decrease income applicable to common stockholders depending upon the
difference between the fair market value of the Series B Preferred represented
by the Depositary Shares and the liquidation price of the Series B Preferred at
the time of the exchange.
UNTENDERED SHARES
Holders of Depositary Shares who do not tender their Depositary Shares in
the Offer or whose Depositary Shares are not accepted for exchange will continue
to hold such Depositary Shares and will be entitled to all the rights and
preferences, and will be subject to all of the limitations, applicable thereto.
To the extent that Depositary Shares are tendered and accepted in the
Offer, the terms on which untendered Depositary Shares could subsequently be
sold could be adversely affected. See "Special Considerations Relating to the
Offer -- Reduced Trading Market for Depositary Shares".
EXCHANGE AGENT AND INFORMATION AGENT
Chemical Bank has been appointed as Exchange Agent in connection with the
Offer. Questions and requests for assistance, requests for additional copies of
this Prospectus or of the Letter of Transmittal and requests for Notices of
Guaranteed Delivery should be directed to Georgeson & Company Inc., which has
been retained by Ford and the Trust to act as Information Agent for the Offer.
The addresses and telephone numbers of the Exchange Agent and the Information
Agent are set forth in "The Offer -- Exchange Agent and Information Agent" and
on the outside back cover of this Prospectus.
DEALER MANAGERS
Merrill Lynch & Co., Dean Witter Reynolds Inc., A.G. Edwards & Sons, Inc.,
Goldman, Sachs & Co., Lehman Brothers, PaineWebber Incorporated and Smith Barney
Inc. have been retained as Dealer Managers in connection with the Offer. For
information regarding fees payable to the Dealer Managers and Soliciting Dealers
(as defined herein), see "The Offer -- Dealer Managers; Soliciting Dealers".
14
<PAGE> 21
SPECIAL CONSIDERATIONS RELATING TO THE OFFER
Prospective exchanging holders of Depositary Shares who plan to participate
in the Offer should carefully consider, in addition to the other information set
forth elsewhere in this Prospectus, the following:
EXCHANGE OF DEPOSITARY SHARES FOR PREFERRED SECURITIES IS A TAXABLE EVENT
The exchange of Depositary Shares for Preferred Securities pursuant to the
Offer will be a taxable event. Generally, gain or loss will be recognized in an
amount equal to the difference between the fair market value on the Expiration
Date of the holder's pro rata share of the Junior Subordinated Debentures
represented by the Preferred Securities received in the exchange and the
exchanging Holder's tax basis in the Depositary Shares exchanged therefor. See
"Taxation -- Exchange of Depositary Shares for Preferred Securities". All
Holders of Depositary Shares are advised to consult their tax advisors regarding
the United States federal, state, local and foreign tax consequences of the
exchange of Depositary Shares and the issuance of Preferred Securities. See
"Price Range of Depositary Shares".
CORPORATE HOLDERS OF PREFERRED SECURITIES NOT ENTITLED TO DIVIDENDS RECEIVED
DEDUCTION
While dividends with respect to the Depositary Shares are eligible for the
dividends received deduction for corporate holders, distributions on the
Preferred Securities are not eligible for the dividends received deduction for
corporate holders.
RANKING OF SUBORDINATED OBLIGATIONS UNDER PREFERRED SECURITIES GUARANTEE AND
JUNIOR SUBORDINATED DEBENTURES
The obligations of Ford under the Junior Subordinated Debentures are
unsecured obligations of Ford and will be subordinate and junior in right of
payment, to the extent set forth herein, to all Senior Indebtedness (as defined
herein) of Ford, except obligations and securities made pari passu or
subordinate by their terms, but senior to all capital stock now or hereafter
issued by Ford and to any guarantee now or hereafter entered into by Ford in
respect of its capital stock. Ford's obligations under the Preferred Securities
Guarantee are unsecured and will rank (i) subordinate and junior in right of
payment to all Senior Indebtedness of Ford, and to the Junior Subordinated
Debentures, and (ii) senior to all capital stock now or hereafter issued by Ford
and to any guarantee now or hereafter entered into by Ford in respect of its
capital stock. At June 30, 1995, liabilities of Ford on a consolidated basis
aggregated approximately $212.6 billion. The terms of the Preferred Securities,
the Junior Subordinated Debentures or the Preferred Securities Guarantee do not
limit the ability of Ford to incur additional indebtedness or other liabilities,
including indebtedness that ranks senior to or pari passu with the Junior
Subordinated Debentures and the Preferred Securities Guarantee, or the ability
of its subsidiaries to incur additional indebtedness or other liabilities. See
"Description of the Preferred Securities Guarantee -- Status of the Preferred
Securities Guarantee" and "Description of the Junior Subordinated Debentures --
Subordination".
TRUST DISTRIBUTIONS DEPENDENT ON FORD'S PAYMENTS ON JUNIOR SUBORDINATED
DEBENTURES
The Trust's ability to make distributions and other payments on the
Preferred Securities is solely dependent upon Ford making interest and other
payments on the Junior Subordinated Debentures deposited as trust assets as and
when required. If Ford were not to make distributions or other payments on the
Junior Subordinated Debentures for any reason, including as a result of Ford's
election to defer the payment of interest on the Junior Subordinated Debentures
by extending the interest period on the Junior Subordinated Debentures, the
Trust will not make payments on the Trust Securities. In such an event, holders
of the Preferred Securities would not be able to rely on the Preferred
Securities Guarantee since distributions and other payments on the Preferred
Securities are subject to such Guarantee only if and to the extent that Ford has
made a payment to the Trust of interest or principal on the Junior Subordinated
Debentures deposited in the Trust as trust assets. Instead, holders of Preferred
Securities would rely on the enforcement by the Institutional Trustee of its
rights against Ford pursuant to the terms of the Indenture. However, if the
Trust's failure to make distributions on the Preferred Securities is a
consequence of Ford's exercise of its right to
15
<PAGE> 22
extend the interest payment period for the Junior Subordinated Debentures, the
Institutional Trustee will have no right to enforce the payment of distributions
on the Preferred Securities until an Event of Default under the Declaration
shall have occurred.
The Declaration provides that Ford shall pay for all debts and obligations
(other than with respect to the Trust Securities) and all costs and expenses of
the Trust, including any taxes and all costs and expenses with respect thereto,
to which the Trust may become subject, except for United States withholding
taxes.
For a discussion of the ranking of the Junior Subordinated Debentures, see
"-- Ranking of Subordinated Obligations under Preferred Securities Guarantee and
Junior Subordinated Debentures."
FORD MAY DEFER INTEREST PAYMENTS ON JUNIOR SUBORDINATED DEBENTURES
So long as Ford shall not be in default in the payment of interest on the
Junior Subordinated Debentures, Ford has the right under the Indenture to defer
payments of interest on the Junior Subordinated Debentures by extending the
interest payment period from time to time on the Junior Subordinated Debentures
for an Extension Period not exceeding 20 consecutive quarterly interest periods,
during which no interest shall be due and payable, provided that no Extension
Period may extend beyond the maturity of the Junior Subordinated Debentures. In
such an event, quarterly distributions on the Preferred Securities would not be
made (but would continue to accrue with interest thereon at the rate of [ %]
per annum, compounded quarterly to the extent permitted by applicable law) by
the Trust during any such Extension Period. If Ford exercises the right to
extend an interest payment period, Ford may not during such Extension Period
declare or pay dividends on, or redeem, purchase, acquire or make a distribution
or liquidation payment with respect to, any of its common stock or preferred
stock; or any other securities similar to the Preferred Securities or the Junior
Subordinated Debentures provided that Ford will be permitted to pay dividends
(and cash in lieu of fractional shares) upon the conversion, other than at the
option of Ford, of any of its preferred stock, including its Series A Cumulative
Convertible Preferred Stock in accordance with the terms of such stock. Any
Extension Period with respect to payment of interest on the Junior Subordinated
Debentures, other debt securities of Ford under the Indenture or on any similar
securities will apply to all such securities and will also apply to
distributions with respect to the Preferred Securities and all other securities
with similar terms.
Prior to the termination of any Extension Period, Ford may further extend
such Extension Period; provided that such Extension Period together with all
such previous and further extensions thereof may not exceed 20 consecutive
quarterly interest periods. Upon the termination of any Extension Period and the
payment of all amounts then due, Ford may commence a new Extension Period,
subject to the above requirements. Ford may also prepay at any time all or any
portion of the interest accrued during an Extension Period. Consequently, there
could be multiple Extension Periods of varying lengths (up to six Extension
Periods of 20 consecutive quarterly interest periods each or more numerous
shorter Extension Periods) throughout the term of the Junior Subordinated
Debentures. See "Description of the Preferred Securities -- Distributions" and
"Description of the Junior Subordinated Debentures -- Option to Extend Interest
Payment Period".
TAX CONSEQUENCES OF EXTENSION OF INTEREST PAYMENT PERIODS
Because Ford has the right to extend the interest payment period up to 20
consecutive quarterly interest periods on various occasions, the Junior
Subordinated Debentures will be treated as issued with "original issue discount"
for United States federal income tax purposes. As a result, holders of Preferred
Securities will be required to include their pro rata share of original issue
discount in gross income as it accrues for United States federal income tax
purposes in advance of the receipt of cash. Generally, all of a Securityholder's
taxable interest income with respect to the Junior Subordinated Debentures will
be accounted for as "original issue discount" and actual distributions of stated
interest will not be separately reported as taxable income. See "Taxation --
Accrual of Original Issue Discount and Premium" and "-- Potential Extension of
Payment Period on the Junior Subordinated Debentures".
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<PAGE> 23
POTENTIAL MARKET VOLATILITY DURING EXTENSION PERIOD
As described above, Ford has the right to extend an interest payment period
on the Junior Subordinated Debentures from time to time for periods not
exceeding 20 consecutive quarterly interest periods. If Ford determines to
extend an interest payment period, or if Ford thereafter extends an Extension
Period or prepays interest accrued during an Extension Period as described
above, the market price of the Preferred Securities is likely to be adversely
affected. In addition, as a result of such rights, the market price of the
Preferred Securities (which represent an undivided interest in Junior
Subordinated Debentures) may be more volatile than other securities on which
original issue discount accrues that do not have such rights. A holder that
disposes of its Preferred Securities during an Extension Period, therefore, may
not receive the same return on its investment as a holder that continues to hold
its Preferred Securities. See "Description of the Junior Subordinated Debentures
-- Option to Extend Interest Payment Period".
LACK OF ESTABLISHED TRADING MARKET FOR PREFERRED SECURITIES
The Preferred Securities constitute a new issue of securities of the Trust
with no established trading market. While application will be made to list the
Preferred Securities on the NYSE, there can be no assurance that an active
market for the Preferred Securities will develop or be sustained in the future
on such exchange. Although the Dealer Managers have indicated to Ford and the
Trust that they intend to make a market in the Preferred Securities following
the Expiration Date, as permitted by applicable laws and regulations prior to
the commencement of trading on the NYSE, they are not obligated to do so and may
discontinue any such market-making at any time without notice. Accordingly, no
assurance can be given as to the liquidity of, or trading markets for, the
Preferred Securities. In order to satisfy the NYSE listing requirements,
acceptance of Depositary Shares validly tendered in the Offer is subject to the
Minimum Distribution Condition, which condition may not be waived by Ford or the
Trust. See "Listing and Trading of Preferred Securities and Depositary Shares".
REDUCED TRADING MARKET FOR DEPOSITARY SHARES
To the extent Depositary Shares are tendered and accepted in the Offer, the
liquidity and trading market for the Depositary Shares to be outstanding
following the Offer, and the terms upon which such Depositary Shares could be
sold, could be adversely affected. In addition, if the Offer is substantially
subscribed or oversubscribed, there would be a significant risk that round lot
holdings of Depositary Shares outstanding following the Offer would be limited.
See "Listing and Trading of Preferred Securities and Depositary Shares".
The Offer is for up to 44,600,000 Depositary Shares (or 98% of the
45,600,000 Depositary Shares outstanding), rather than for all the outstanding
Depositary Shares, to reduce the risk that the Depositary Shares would be
subject to delisting following consummation of the Offer.
Under the rules of the NYSE, preferred securities such as the Depositary
Shares are subject to delisting if (i) the aggregate value of publicly-held
shares is less than $2 million and (ii) the number of publicly-held shares is
less than 100,000. Since at least 1,000,000 Depositary Shares will remain
outstanding following consummation of the Offer, the number of outstanding
Depositary Shares will exceed the delisting criteria set forth in clause (ii)
above. In addition, based on the market price of the Depositary Shares on the
NYSE ($[ ] on [ ], the closing sales price of the
Depositary Shares on the NYSE on the last full trading day immediately prior to
Ford's first public announcement of the Offer, and $ on ,
1995), the Company believes that the aggregate value of the minimum number
(1,000,000) of Depositary Shares which will be outstanding following
consummation of the Offer should exceed the delisting criteria set forth in
clause (i) above. See "Price Range of Depositary Shares". If less than
44,600,000 Depositary Shares are validly tendered, then the number of Depositary
Shares remaining outstanding, and the market value thereof, will be even
greater.
17
<PAGE> 24
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence and during the continuation of a Tax Event or
Investment Company Event (each as defined herein), which may occur at any time,
the Trust shall, unless the Junior Subordinated Debentures are redeemed in the
limited circumstances described below, be dissolved, with the result that, in
the manner described in "Description of the Preferred Securities -- Liquidation
Distribution Upon Dissolution", Junior Subordinated Debentures having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
and bearing accrued and unpaid interest equal to accrued and unpaid
distributions on, the Preferred Securities and Common Securities would be
distributed on a Pro Rata Basis to the holders of the Preferred Securities and
Common Securities in liquidation of the Trust. In the case of a Tax Event, in
certain circumstances, Ford shall have the right to redeem at any time the
Junior Subordinated Debentures, in whole or in part, in which event the Trust
will redeem Preferred Securities and Common Securities on a Pro Rata Basis to
the same extent as the Junior Subordinated Debentures are redeemed. There can be
no assurance as to the market prices for Preferred Securities or the Junior
Subordinated Debentures which may be distributed in exchange for Preferred
Securities if a dissolution and liquidation of the Trust were to occur.
Accordingly, the Junior Subordinated Debentures which the investor may receive
on dissolution and liquidation of the Trust may trade at a discount to the price
of the Depositary Shares exchanged. See "Description of the Preferred Securities
-- Special Event Redemption or Distribution" and "Description of the Junior
Subordinated Debentures -- General".
Under current United States federal income tax law, a distribution of the
Junior Subordinated Debentures upon a Tax Event or Investment Company Event
would not be a taxable event to holders of the Preferred Securities. See
"Taxation -- Distribution of Junior Subordinated Debentures to Holders of
Preferred Securities".
LIMITED VOTING RIGHTS
Holders of Preferred Securities will have limited voting rights and will
not be able to appoint, remove or replace, or to increase or decrease the number
of, Trustees, which rights are vested exclusively in the Common Securities. See
"Description of the Preferred Securities -- Voting Rights."
Holders of Depositary Shares also have limited voting rights. However, in
the event that dividends on all series of preferred stock, including the Series
B Preferred, are in arrears and unpaid for such number of dividend periods which
shall in the aggregate contain not less than 540 days, the Board of Directors
shall be increased by two directors and the holders of Series B Preferred,
together with the holders of all other series of preferred stock then entitled
to vote thereon shall be entitled to elect two directors of the expanded Board
of Directors with certain exceptions. See "Description of Series B Preferred and
Depositary Shares -- Voting".
18
<PAGE> 25
COMPARISON OF PREFERRED SECURITIES AND DEPOSITARY SHARES
The following is a brief summary of certain terms of the Preferred
Securities and the Depositary Shares. For a more complete description of the
Preferred Securities, see "Description of the Preferred Securities". For a
description of the Junior Subordinated Debentures which will be deposited in the
Trust as trust assets and will represent the sole source for the payment of
distributions and other payments on the Preferred Securities, see "Description
of the Junior Subordinated Debentures".
<TABLE>
<CAPTION>
PREFERRED SECURITIES DEPOSITARY SHARES
-------------------------------------- --------------------------------------
<S> <C> <C>
Issuer................. The Trust. Payment of distributions Ford.
and on liquidation or redemption is
guaranteed on a subordinated basis, as
and to the extent described herein, by
Ford.
Distribution/Dividend
Rate................. [ %] per annum distribution payable 8.25% per annum dividend payable on
quarterly in arrears on the last day the first business day of March, June,
of March, June, September and December September and December of each year,
of each year, commencing December 31, out of funds legally available
1995, from and including the Accrual therefor, when, as and if declared by
Date, but only if, and to the extent Ford's Board of Directors. Dividends
that, interest payments are made in are cumulative. Accrued but unpaid
respect of the Junior Subordinated dividends do not bear interest.
Debentures held by the Trust. During Dividends accrue whether or not Ford
any Extension Period on the Junior has earnings, whether or not there are
Subordinated Debentures, distribution funds legally available for the
payments on the Preferred Securities payment of such dividends and whether
will not be made but would continue to or not such dividends are declared.
accrue, and, in the case of Ford has made each quarterly dividend
distributions in arrears, would bear payment with respect to the Depositary
interest at the rate of [ %] per Shares on the scheduled dividend
annum, compounded quarterly to the payment date.
extent permitted by applicable law.
Maturity/Mandatory and
Optional Redemption.. The Preferred Securities will be No maturity or mandatory redemption.
redeemed upon the maturity or earlier The Depositary Shares are redeemable
redemption of the Junior Subordinated at the option of Ford on and after
Debentures, at a redemption price December 1, 2002, in whole or in part,
equal to $25 per Preferred Security to at a redemption price equivalent to
be redeemed, plus accrued and unpaid $25 per Depositary Share to be
distributions, if any, to the redeemed, plus accrued and unpaid
redemption date, including dividends thereon, to the redemption
distributions accrued as a result of date, provided that Ford shall have
Ford's election to defer payments of issued an equivalent amount of its
interest on the Junior Subordinated common stock within the prior two
Debentures. The Junior Subordinated years. Holders of Depositary Shares
Debentures are redeemable at the have no right to require Ford to
option of Ford, in whole or in part, redeem the Depositary Shares at the
on or after December 1, 2002, at a option of the holders.
redemption price equivalent to $25 per
Junior Subordinated Debenture to be
redeemed, plus accrued and unpaid
interest thereon, to the redemption
date. In the event that the Junior
Subordinated Debentures are redeemed,
upon the repayment of the Junior
Subordinated Debentures, upon
maturity, upon redemption or
otherwise, the proceeds thereof will
be promptly applied to redeem the
Preferred Securities and the Common
Securities. The Junior Subordinated
Debentures have a final maturity of
December 31, 2025. See "Description of
the Preferred Securities --
</TABLE>
19
<PAGE> 26
<TABLE>
<CAPTION>
PREFERRED SECURITIES DEPOSITARY SHARES
-------------------------------------- --------------------------------------
<S> <C> <C>
Special Event Redemption or
Distribution" and "-- Mandatory
Redemption". See "Prospectus Summary
-- Potential Risk to Non-Exchanging
Holders". Holders of Preferred
Securities have no right to require
Ford to redeem the Preferred
Securities at the option of the
holders.
Subordination.......... Subordinated to claims of creditors of Subordinated to claims of creditors of
the Trust, if any. The Preferred Ford, including the Junior
Securities and the Common Securities Subordinated Debentures, but senior to
will have equivalent terms; provided the common stock of Ford and pari
that (i) if an Event of Default under passu with all other outstanding
the Declaration occurs and is series of preferred stock of Ford. As
continuing, the holders of Preferred capital stock, the Depositary Shares
Securities will have a priority over are junior to all of the debt of Ford,
holders of the Common Securities with including the Junior Subordinated
respect to payments in respect of Debentures.
distributions and payments upon
liquidation, redemption or otherwise
and (ii) holders of Common Securities
have the exclusive right (subject to
the terms of the Declaration) to
appoint, remove or replace Trustees
and to increase or decrease the number
of Trustees.
The Trust is not permitted to incur
any indebtedness for borrowed money.
The Declaration provides that Ford
shall pay for all debts and
obligations (other than with respect
to the Trust Securities) and all costs
and expenses of the Trust, including
any income taxes, duties and other
governmental charges, and all costs
and expenses with respect thereto, to
which the Trust may become subject,
except for United States withholding
taxes.
The Junior Subordinated Debentures
will rank subordinate and junior to
all Senior Indebtedness of Ford,
except obligations and securities made
pari passu or subordinate by their
terms, and senior to all capital stock
now or hereafter issued by Ford and to
any guarantee now or hereafter entered
into by Ford in respect of any of its
capital stock (including the
Depositary Shares). Ford's obligations
under the Preferred Securities
Guarantee will rank subordinate and
junior to all Senior Obligations of
Ford, except obligations and
securities made pari passu or
subordinate by their terms, and to the
Junior Subordinated Debentures, and
senior to all capital stock now or
hereafter issued by Ford and to any
guarantee now or hereafter entered
into by Ford in respect of any of its
capital stock.
</TABLE>
20
<PAGE> 27
<TABLE>
<CAPTION>
PREFERRED SECURITIES DEPOSITARY SHARES
-------------------------------------- --------------------------------------
<S> <C> <C>
As of June 30, 1995, Ford had Senior
Indebtedness consisting of
approximately $16 billion of trade and
other payables, $143 billion of debt
and $53.6 billion of other
liabilities. Assuming 44,600,000
Depositary Shares are tendered, there
will be $1.115 billion in Junior
Subordinated Debentures senior to the
Preferred Securities Guarantee in
addition to the other obligations of
Ford set forth above.
Listing................ Application will be made to list the The Depositary Shares are listed on
Preferred Securities on the NYSE. In the NYSE under the symbol "F Pr B".
order to satisfy the NYSE listing
requirements, acceptance of Depositary
Shares validly tendered in the Offer
is subject to the Minimum Distribution
Condition, which condition may not be
waived.
Dividends Received
Deduction............ Distributions on the Preferred Dividends are eligible for the
Securities are not eligible for the dividends received deduction for
dividends received deduction for corporate holders.
corporate holders.
Voting Rights/
Enforcement.......... Holders of Preferred Securities have If dividends shall be in arrears for
no voting rights other than as such number of dividend periods which
provided under the Business Trust Act shall in the aggregate contain not
or the Trust Indenture Act, except in less than 540 days, Ford's Board of
the limited circumstances discussed Directors shall be increased by two
below. The Institutional Trustee has directors and holders have the right
the power to exercise all rights under (together with other classes of
the Indenture with respect to the preferred stock ranking on a parity
Junior Subordinated Debentures and is with the Series B Preferred either as
also authorized to enforce the to dividends or on the distribution of
Preferred Securities Guarantee on assets upon liquidation) to elect two
behalf of holders of the Preferred directors.
Securities. If the Trust's failure to
make distributions is a consequence of
Ford's exercise of its right to extend
the interest payment period for the
Junior Subordinated Debentures as
described under "Distribution/Dividend
Rate", the Institutional Trustee will
have no right to enforce the payment
of distributions until an Event of
Default under the Declaration shall
have occurred. The holders of at least
a majority in liquidation amount of
the Preferred Securities will have the
right to direct the Institutional
Trustee with respect to certain
matters under the Declaration and the
Preferred Securities Guarantee. If the
Institutional Trustee fails to enforce
its rights under the Indenture or
fails to enforce the Preferred
Securities Guarantee, any holder of
Preferred Securities may institute a
legal proceeding against Ford to
enforce such rights or the Preferred
Securities Guarantee, as the case may
be.
</TABLE>
21
<PAGE> 28
FORD MOTOR COMPANY
Ford was incorporated in Delaware in 1919 and acquired the business of a
Michigan company, also known as Ford Motor Company, incorporated in 1903 to
produce automobiles designed and engineered by Henry Ford. Ford is the
second-largest producer of cars and trucks in the world, and ranks among the
largest providers of financial services in the United States.
Ford's two principal business segments are Automotive and Financial
Services. The activities of the Automotive segment consist of the design,
manufacture, assembly and sales of cars and trucks and related parts and
accessories. Substantially all of Ford's automotive products are marketed
through retail dealerships, most of which are privately owned and financed.
The Financial Services segment is comprised of the following direct
subsidiaries, the activities of which include financing operations, vehicle and
equipment leasing and insurance operations: Ford Credit, Ford Credit Europe,
Ford Holdings, Hertz and Granite. Ford Holdings is a holding company that owns
primarily The Associates, USL Capital and American Road. In addition, there are
a number of international affiliates not listed above that are consolidated in
the total Financial Services results, but are managed by either Ford Credit
(which manages Ford Credit Europe, as well as other international affiliates),
The Associates or USL Capital.
22
<PAGE> 29
CAPITALIZATION
The following table sets forth the historical capitalization of Ford at
June 30, 1995 and as adjusted to give effect to the issuance of Preferred
Securities in exchange for the Depositary Shares. The "As Adjusted"
capitalization described in the table below assumes that holders of 44,600,000
Depositary Shares elect to participate in the Offer. To the extent holders of
Depositary Shares elect not to participate in the Offer, Preferred Securities of
the Trust would be reduced and Series B Preferred would be increased by an equal
amount.
<TABLE>
<CAPTION>
AMOUNT
OUTSTANDING AT AS
JUNE 30, 1995 ADJUSTED
-------------- --------
(IN MILLIONS)
<S> <C> <C>
AUTOMOTIVE
Debt payable within one year, including the current portion of
long-term debt.................................................. $ 796 $ 796
Long-term debt.................................................... 6,070 6,070
Minority interests in net assets of subsidiaries.................. 132 132
FINANCIAL SERVICES
Debt(a)........................................................... 136,496 136,496
Minority interests in net assets of subsidiaries.................. 621 621
Ford-obligated mandatorily redeemable Preferred Securities of
Subsidiary Trust(b)............................................. -- 1,115
Preferred stockholders' equity in subsidiary company.............. 1,976 1,976
STOCKHOLDERS' EQUITY
Preferred Stock, par value $1.00 a share
Issued and outstanding -- 55,621 shares at June 30, 1995,
33,321 shares as adjusted.................................... (c) (c)
Common Stock, par value $1.00 a share
Issued and outstanding -- 1,004 million shares.................. 1,004 1,004
Class B Stock, par value $1.00 a share
Issued and outstanding -- 71 million shares..................... 71 71
Capital in excess of par value of stock........................... 5,440 4,325
Foreign currency translation adjustments and other................ 1,158 1,158
Earnings retained for use in business............................. 17,567 17,567
-------- --------
TOTAL STOCKHOLDERS' EQUITY........................................ $ 25,240 $ 24,125
-------- --------
TOTAL CAPITALIZATION.............................................. $171,331 $171,331
======== ========
</TABLE>
---------------
(a) Additional indebtedness has been placed since June 30, 1995.
(b) The sole asset of the Trust will be the Junior Subordinated Debentures of
Ford with a final maturity of December 31, 2025. Upon redemption of the
Junior Subordinated Debentures, the Preferred Securities will be mandatorily
redeemed. The Junior Subordinated Debentures are limited to an aggregate
principal amount of $1.115 billion and will bear interest at a rate of [
%] from their Accrual Date. The payment of distributions out of moneys held
by the Trust and payments on liquidation of the Trust and the redemption of
Preferred Securities are guaranteed by Ford's Preferred Securities
Guarantee. See "Description of the Preferred Securities Guarantee". The
Preferred Securities Guarantee is a full and unconditional guarantee from
the time of issuance of the Preferred Securities, but the Preferred
Securities Guarantee covers distributions and other payments on the
Preferred Securities only if and to the extent that Ford has made a payment
of interest or principal on the Junior Subordinated Debentures deposited in
the Trust as trust assets.
(c) Less than $1 million.
23
<PAGE> 30
SELECTED FINANCIAL DATA AND OTHER DATA OF FORD
The following table sets forth selected financial data and other data
concerning Ford:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30 YEARS ENDED OR AT DECEMBER 31
---------------------- ------------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
-------- -------- -------- -------- --------- -------- ---------
(IN MILLIONS EXCEPT PER SHARE AND UNIT SALES AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF INCOME INFORMATION
Automotive
Sales...................................... $ 58,462 $ 54,445 $107,137 $ 91,568 $ 84,407 $ 72,051 $ 81,844
Operating income/(loss).................... 3,556 3,525 5,826 1,432 (1,775) (3,769) 316
Income/(loss) before cumulative effects of
changes in accounting principles......... 2,241 2,175 3,824 940 (1,534) (3,186) 99
Financial Services
Revenues................................... 12,710 9,729 21,302 16,953 15,725 16,235 15,806
Income before income taxes and
cumulative effects of changes in
accounting principles.................... 1,644 1,107 2,792 2,712 1,825 1,465 1,221
Income/(loss) before cumulative effects of
changes in accounting principles......... 881 440 1,484 1,589 1,032 928 761
Total Ford
Income/(loss) before cumulative effects of
changes in accounting principles......... 3,122 2,615 5,308 2,529 (502) (2,258) 860
Cumulative effects of changes in accounting
principles............................... -- -- -- -- (6,883) -- --
Net income/(loss).......................... 3,122 2,615 5,308 2,529 (7,385) (2,258) 860
Amounts Per Share of Common Stock and Class B
Stock After Preferred Stock Dividends*
Income/(loss) before cumulative effects of
changes in accounting principles......... 2.89 2.47 4.97 2.27 (0.73) (2.40) 0.93
Cumulative effects of changes in accounting
principles............................... -- -- -- -- (7.08) -- --
-------- -------- -------- -------- --------- -------- ---------
Income/(loss) assuming no dilution......... 2.89 2.47 4.97 2.27 (7.81) (2.40) 0.93
Income/(loss) assuming full dilution....... 2.59 2.20 4.44 2.10 (7.81) (2.40) 0.92
Cash dividends............................. 0.57 0.425 0.91 0.80 0.80 0.98 1.50
CONSOLIDATED BALANCE SHEET INFORMATION
Automotive
Total assets............................... 72,982 68,048 68,371 61,737 57,170 52,397 50,824
Debt payable within one year............... 796 156 155 932 1,249 2,579 2,849
Long-term debt--noncurrent portion......... 6,070 7,107 7,103 7,084 7,068 6,539 4,553
Financial Services
Total assets............................... 166,826 142,031 150,983 137,201 123,375 122,032 122,839
Debt....................................... 136,496 116,312 123,713 103,960 90,188 88,295 88,117
Deposit accounts**......................... -- -- -- 10,549 14,030 16,882 17,893
Total Ford
Total assets............................... 239,808 210,079 219,354 198,938 180,545 174,429 173,663
Debt (incl. deposit accounts).............. 143,362 123,575 130,971 122,525 112,535 114,295 113,412
Stockholders' equity***.................... 25,240 18,422 21,659 15,574 14,753 22,690 23,238
Cash dividends............................. 729 569 1,205 1,086 977 927 1,389
OTHER DATA
Total Ford
Capital expenditures....................... 4,097 3,601 8,546 6,814 5,790 5,847 7,258
Depreciation and amortization of special
tools.................................... 5,656 4,369 9,336 7,468 6,755 5,778 4,880
Worldwide vehicle unit sales
of cars, trucks and tractors
(in thousands)****....................... 3,581 3,570 6,639 5,965 5,767 5,368 5,864
</TABLE>
------------
* Share data have been restated to reflect the 2-for-1 stock split that
became effective June 6, 1994.
** Deposit accounts relate to First Nationwide.
*** The cumulative effects of changes in accounting principles reduced equity
by $6,883 million in 1992.
**** Effective with the six months ended June 30, 1995, vehicle unit sales are
reported worldwide on a "where sold" basis and include sales of all
Ford-badged units, as well as units manufactured by Ford and sold by other
manufacturers. Unit sales for the six months ended June 30, 1994 have been
restated to reflect the country where sold and to include sales of all
Ford-badged units. Ford-badged unit sales of certain unconsolidated
subsidiaries (primarily Autolatina in Brazil and Argentina), included in
unit sales for the six months ended June 30, 1995 and 1994, are not
included in totals for the years ended December 31, 1990-1994. Unit sales
for the years ended December 31, 1990-1994, are reported for North America
on a "where sold" basis and overseas on a "where produced" basis.
24
<PAGE> 31
FINANCIAL REVIEW OF FORD
SECOND QUARTER 1995 RESULTS OF OPERATIONS
Overview
Ford earned $1,572 million, or $1.45 per share of Common and Class B Stock,
in the second quarter of 1995. This compares with $1,711 million, or $1.63 per
share, in the second quarter of 1994. Fully diluted earnings per share were
$1.30 in the second quarter of 1995, compared with $1.44 a year ago. Ford's
worldwide sales and revenues were $36.4 billion, up $2.6 billion from a year
ago. Vehicle unit sales of cars and trucks were 1,811,000, down 39,000 units, or
2%. Stockholders' equity was $25.2 billion at June 30, 1995.
On June 6, 1994, a 2-for-1 stock split in the form of a 100% stock dividend
on Ford's outstanding Common and Class B Stock became effective.
Automotive Operations
Net income from Ford's worldwide Automotive operations was $1,100 million
in the second quarter of 1995 on sales of $29.9 billion, compared with $1,202
million in the second quarter of 1994 on sales of $28.4 billion.
In the U.S., Ford's Automotive operations earned $663 million in the second
quarter of 1995 on sales of $19.4 billion, compared with $888 million a year ago
on sales of $19.1 billion. The decline in earnings was more than explained by
lower unit volume, reflecting lower industry volume and unfavorable dealer
inventory changes that more than offset improved market share. Changes in
exchange rates (primarily the German Mark and Japanese Yen) also reduced
earnings compared with a year ago. U.S. Automotive after-tax return on sales was
3.4% in the second quarter of 1995, down 1.2 points from a year ago. The decline
also reflected primarily the effects of lower unit volume and unfavorable
exchange rate changes.
In the second quarter of 1995, the seasonally-adjusted annual selling rate
for the U.S. car and truck industry was 14.7 million units, compared with 15.3
million units in the second quarter of 1994. Ford's car market share was 21.3%
in the second quarter of 1995, down 2/10 of a point from a year ago. Ford's
truck share was 32.8%, up 2.8 points from a year ago. Ford's combined car and
truck share was 26.2%, up 1.2 points from a year ago. The improvement in share
reflected primarily strong sales of the Explorer, Windstar, F-Series trucks and
Contour/Mystique.
Outside the U.S., Automotive operations earned $437 million in the second
quarter of 1995 on sales of $10.5 billion, compared with $314 million a year ago
on sales of $9.3 billion. The improvement reflected primarily improved margins
in Europe and higher unit volume in the Asia-Pacific region. In Europe,
Automotive operations earned $319 million, compared with $167 million a year
ago.
In the second quarter of 1995, the seasonally-adjusted annual selling rate
for the European car and truck industry was 13.7 million units, up 480,000 units
from year ago levels. Ford's car share was 11.9% in the second quarter of 1995,
up 4/10 of a point from a year ago. Ford's truck share was 14.5%, down 5/10 of a
point from a year ago, reflecting primarily lower fleet sales. Ford's combined
car and truck share was 12.2%, up 3/10 of a point from a year ago.
It is expected that after-tax returns for the remainder of 1995 will be
lower than the year ago period. Production volume in the second half of 1995 is
expected to be down compared with a year ago as a result of the uncertain
outlook for U.S. industry sales. This factor, combined with the timing and cost
of major new product introductions in 1995 and early 1996 and the continued
unfavorable effect of exchange rate changes, are expected to dampen results in
the upcoming quarters.
Ford and Volkswagen AG have agreed on a separation process leading toward
dissolution of their Autolatina joint venture in Brazil and Argentina by
year-end 1995. Historically, earnings in Brazil and Argentina have represented a
significant portion of Ford's Automotive earnings outside the U.S. and Europe.
It is believed the effect, if any, of the dissolution of Autolatina on Ford's
future earnings is not likely to be material. Business conditions in these
markets, however, have been and are expected to continue to be volatile and
subject to rapid change, which can affect future earnings.
25
<PAGE> 32
Financial Services Operations
Ford's Financial Services operations earned $472 million in the second
quarter of 1995, compared with $509 million in the second quarter of 1994. The
decrease resulted primarily from the nonrecurrence of a gain on sale in 1994 of
Ford Credit's interest in Manheim Auctions ($31 million).
Ford Credit's consolidated net income was $341 million in the second
quarter of 1995, compared with $368 million a year ago. Ford Credit's financing
operations earned $293 million in the second quarter of 1995, compared with $317
million a year ago. The decrease reflected lower net interest margins,
nonrecurrence of the gain on sale of an interest in Manheim Auctions, higher
credit losses, and lower gains from sale of receivables, partially offset by
higher levels of earning assets. Depreciation costs increased as a result of
continued growth in operating leases; the related lease revenues more than
offset the increased depreciation. Ford Credit's results also included $48
million from equity in the net income of affiliated companies, primarily Ford
Holdings. Ford Holdings is a holding company that owns primarily The Associates,
American Road, and USL Capital. The international operations managed by Ford
Credit, but not included in its consolidated results, earned $66 million in the
second quarter of 1995, compared with $50 million a year ago.
The Associates earned a record $141 million in the U.S. in the second
quarter of 1995, compared with $121 million a year ago. The increase reflected
higher levels of earning assets and improved net interest margins. The
international operations managed by The Associates, but not included in its
consolidated results, earned $27 million in the second quarter of 1995, compared
with $21 million a year ago.
USL Capital earned a record $30 million in the second quarter of 1995,
compared with $27 million a year ago. The increase reflected higher levels of
earning assets and higher gains on asset sales. Hertz earned $19 million in the
second quarter of 1995, compared with $26 million in the second quarter of 1994.
The decrease reflected primarily increased depreciation and borrowing costs,
partially offset by higher volume in construction equipment rentals and sales.
American Road incurred a loss of $9 million in the second quarter of 1995,
compared with a net income of $13 million a year ago. The decrease reflected
lower underwriting results in floor plan products and the dissolution of an
operating subsidiary.
FIRST SIX MONTHS 1995 RESULTS OF OPERATIONS
Overview
Ford earned $3,122 million, or $2.89 per share of Common and Class B Stock,
in the first half of 1995. This compares with $2,615 million, or $2.47 per
share, in the first half of 1994. Ford's results a year ago included a charge of
$440 million related to the disposition of First Nationwide Bank. Fully diluted
earnings per share were $2.59 in the first half of 1995, compared with $2.20 a
year ago. Ford's worldwide sales and revenues were $71.2 billion, up $7 billion
from a year ago. Vehicle unit sales of cars and trucks were 3,581,000, up 11,000
units.
Automotive Operations
Net income from Ford's worldwide Automotive operations was $2,241 million
in the first half of 1995 on sales of $58.5 billion, compared with $2,175
million in the first half of 1994 on sales of $54.4 billion.
In the U.S., Ford's Automotive operations earned $1,488 million in the
first half of 1995 on sales of $38.9 billion, compared with $1,704 million a
year ago on sales of $37.1 billion. U.S. Automotive after-tax return on sales
was 3.8%, down 8/10 of a point from a year ago. The decline in earnings
reflected primarily the same factors as those described in the discussion of
second quarter results of operations.
In the first half of 1995, the seasonally-adjusted annual selling rate for
the U.S. car and truck industry was 14.9 million units, compared with 15.5
million units a year ago. Ford expects U.S. car and truck industry sales to
total 15.1 million units for the full year, compared with 15.4 million units in
1994. Ford's car share was 21.6% in the first half of 1995, up 3/10 of a point
from a year ago. Ford's truck share was 32.6%, up 2.9 points from a year ago.
Ford's combined car and truck share was 26.3%, up 1.4 points from a year ago.
26
<PAGE> 33
Outside the U.S., Automotive operations earned $753 million in the first
half of 1995 on sales of $19.6 billion, compared with $471 million a year ago on
sales of $17.3 billion. The improvement reflected primarily higher unit volume
and improved margins in Europe. Ford's European Automotive operations earned
$484 million in the first half of 1995, compared with $220 million a year ago.
In the first half of 1995, the seasonally-adjusted annual selling rate for
the European car and truck industry was 13.6 million units, compared with 13.2
million units a year ago. Ford expects European car and truck industry sales to
total 13.4 million units for the full year, compared with 13.3 million units in
1994. Ford's car share was 12% in the first half of 1995, up 2/10 of a point
from a year ago. Ford's truck share was 15.1%, up 4/10 of a point from a year
ago. Ford's combined car and truck share was 12.3%, up 2/10 of a point from the
first half of 1994.
Financial Services Operations
Ford's Financial Services operations earned $881 million in the first half
of 1995, compared with $440 million in the first half of 1994. The improvement
was explained by the nonrecurrence of the $440 million charge to net income in
the first quarter of 1994 for disposition of First Nationwide Bank.
Ford Credit's consolidated net income was $629 million in the first half of
1995, compared with $667 million a year ago. Ford Credit's financing operations
earned $522 million, compared with $562 million a year ago. The decrease
reflected primarily the same factors as those described in the discussion of
second quarter results of operations. Ford Credit's results also included $107
million from equity in the net income of affiliated companies, primarily Ford
Holdings. The international operations managed by Ford Credit, but not included
in its consolidated results, earned $131 million in the first half of 1995,
compared with $113 million a year ago.
The Associates earned a record $293 million in the U.S. in the first half
of 1995, compared with $249 million a year ago. The increase reflected higher
levels of earning assets and improved net interest margins. The international
operations managed by The Associates, but not included in its consolidated
results, earned $49 million in the first half of 1995, compared with $39 million
a year ago.
USL Capital earned a record $56 million in the first half of 1995, compared
with $48 million a year ago. Hertz earned $19 million in the first half of 1995,
compared with $25 million a year ago. American Road incurred a loss of $4
million in the first half of 1995, compared with earnings of $30 million in the
same period in 1994. These changes reflected primarily the same factors as those
described in the discussion of second quarter results of operations.
LIQUIDITY AND CAPITAL RESOURCES
Automotive Operations
Cash, cash equivalents and marketable securities of Ford's Automotive
operations were $14 billion at June 30, 1995, up $1.9 billion from December 31,
1994. The amount of cash, cash equivalents and marketable securities is expected
to decline during the second half of the year because of lower production volume
and higher capital spending. Ford paid $729 million in cash dividends on its
Common Stock, Class B Stock and Preferred Stock during the first six months of
1995.
Automotive capital expenditures were $4 billion in the first six months of
1995, up $470 million from the same period a year ago. Automotive capital
spending is projected to increase further during the second half of the year as
a result of increases in both product and nonproduct spending. The higher
product spending reflects a record pace of new-model introductions and increased
capacity for selected components and vehicles, while the higher nonproduct
spending reflects continuing efforts to improve efficiency and quality.
Automotive debt at June 30, 1995 totaled $6.9 billion, which was 21% of
total capitalization (stockholders' equity and Automotive debt), compared with
$7.3 billion, or 25% of total capitalization, at December 31, 1994.
27
<PAGE> 34
At June 30, 1995, Ford (parent company only) had long-term contractually
committed credit agreements in the U.S. under which $5.9 billion were available
from various banks. These facilities were unused at June 30, 1995. Outside the
U.S., Ford had additional long-term contractually committed credit-line
agreements of $2.6 billion at June 30, 1995; none of these were in use.
Effective July 1, 1995, most of the credit facilities discussed above were
replaced with long-term contractually committed global credit agreements under
which $8.4 billion is available from various banks at least through June 30,
2000. The entire $8.4 billion may be used, at Ford's option, by any affiliate of
Ford; however, any borrowing by an affiliate will be guaranteed by Ford. In
addition, Ford has the ability to transfer on a nonguaranteed basis the entire
$8.4 billion in varying portions to Ford Credit and Ford Credit Europe.
Financial Services Operations
Financial Services' cash, cash equivalents and investments in securities
totaled $9.2 billion at June 30, 1995, up $1.4 billion from December 31, 1994.
Net receivables and lease investments were $143.5 billion at June 30, 1995,
up $13.2 billion from December 31, 1994. The increase reflected continued growth
in earning assets at Ford Credit and The Associates.
Total debt was $136.5 billion at June 30, 1995, up $12.8 billion from
December 31, 1994. The increase resulted from higher debt levels required to
finance growth in earning assets at Ford Credit and The Associates.
At June 30, 1995, Financial Services had $34.8 billion of contractually
committed support facilities (including the $5.9 billion of the Ford credit
agreements) for use in the U.S.; less than 2% of these facilities, excluding the
Ford credit agreements, were in use. An additional $9 billion of contractually
committed support facilities were available outside the U.S. at June 30, 1995;
$1.5 billion of these were in use. The majority of these facilities that were
available for use by Ford Credit and Ford Credit Europe and their subsidiaries
($21.3 billion, excluding the $5.9 billion of the Ford credit agreements) have
been terminated effective July 1, 1995, and have been replaced by contractually
committed global credit agreements under which $19.8 billion and $4.1 billion
are available to Ford Credit and Ford Credit Europe, respectively, from various
banks; 62% and 75%, respectively, of such facilities are available through June
30, 2000. The entire $19.8 billion may be used, at Ford Credit's option, by any
subsidiary of Ford Credit, and the entire $4.1 billion may be used, at Ford
Credit Europe's option, by any subsidiary of Ford Credit Europe. Any borrowings
by such subsidiaries will be guaranteed by Ford Credit or Ford Credit Europe, as
the case may be.
INDUSTRY DATA AND MARKET SHARE OF FORD
The following table shows the U.S. industry retail deliveries of cars and
trucks for the periods indicated:
<TABLE>
<CAPTION>
U.S. INDUSTRY RETAIL DELIVERIES
(MILLIONS OF UNITS)
--------------------------------------------------------------
SIX MONTHS ENDED
JUNE 30* YEARS ENDED DECEMBER 31
----------------- ----------------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Cars...................................... 8.5 9.1 9.0 8.5 8.2 8.2 9.3
Trucks.................................... 6.4 6.4 6.4 5.7 4.9 4.3 4.8
</TABLE>
------------
* Seasonally adjusted annual rates.
The following table shows Ford's U.S. car and truck market shares for the
periods indicated:
<TABLE>
<CAPTION>
FORD U.S. CAR AND TRUCK MARKET SHARES
--------------------------------------------------------------
SIX MONTHS ENDED
JUNE 30 YEARS ENDED DECEMBER 31
----------------- ----------------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Cars.................................... 21.6% 21.3% 21.8% 22.3% 21.8% 20.1% 21.1%
Trucks.................................. 32.6 29.7 30.1 30.5 29.7 28.9 29.3
</TABLE>
28
<PAGE> 35
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of "earnings" to "fixed charges" for Ford was as follows for the
first six months of 1995 and each of the years 1990-1994:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31
SIX MONTHS ENDED ----------------------------------------
JUNE 30, 1995 1994 1993 1992 1991 1990
---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ford Motor Company........................ 2.0 2.0 1.5 * ** 1.2
</TABLE>
------------
* Earnings were inadequate to cover fixed charges by $237 million.
** Earnings were inadequate to cover fixed charges by $2,664 million.
For purposes of the ratio, "earnings" include the income/(loss) before
income taxes and cumulative effects of changes in accounting principles of Ford
and its majority-owned subsidiaries, whether or not consolidated, its
proportionate share of any fifty-percent-owned companies, and any income
received from less-than-fifty-percent-owned companies and fixed charges. "Fixed
charges" consist of interest on borrowed funds, preferred stock dividend
requirements of majority-owned subsidiaries, amortization of debt discount,
premium, and issuance expense, and one-third of all rental expense (the
proportion deemed representative of the interest factor).
FORD MOTOR COMPANY CAPITAL TRUST I
The Trust is a statutory business trust that was formed under the Business
Trust Act on September 19, 1995 pursuant to a declaration of trust dated
September 19, 1995 among the Trustees and Ford and the filing of a certificate
of trust with the Secretary of State of Delaware. Such declaration of trust will
be amended and restated in its entirety as of the date the Trust accepts
Depositary Shares in the Offer (see "The Offer -- Terms of the Offer")
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. The Declaration is qualified under the Trust
Indenture Act. Upon issuance of the Preferred Securities, the holders thereof
will own all of the issued and outstanding Preferred Securities. Ford has agreed
to acquire Common Securities in an amount equal to at least 3% of the total
capital of the Trust and will own, directly or indirectly, all of the issued and
outstanding Common Securities. The Preferred Securities and the Common
Securities will have equivalent terms; provided that (i) if an Event of Default
under the Declaration occurs and is continuing, the holders of Preferred
Securities will have a priority over holders of the Common Securities with
respect to payments in respect of distributions and payments upon liquidation,
redemption or otherwise and (ii) holders of Common Securities have the exclusive
right (subject to the terms of the Declaration) to appoint, remove or replace
Trustees and to increase or decrease the number of Trustees.
The number of Trustees of the Trust shall initially be five. Three of the
Trustees will be the Regular Trustees. The fourth trustee is The Bank of New
York which will act as the Indenture Trustee for purposes of the Trust Indenture
Act. The fifth trustee is The Bank of New York (Delaware) which will serve as
the Delaware Trustee. Pursuant to the Declaration, the Institutional Trustee
will have the power to exercise all rights, powers and privileges under the
Indenture with respect to the Junior Subordinated Debentures. The Institutional
Trustee will promptly make distributions to the holders of the Trust Securities
out of any funds in the Trust. The Preferred Securities Guarantee will be
separately qualified under the Trust Indenture Act and will be held by The Bank
of New York, acting in its separate capacity as indenture trustee with respect
to the Preferred Securities Guarantee for the benefit of the holders of the
Preferred Securities.
The Trust exists for the purpose of (a) issuing (i) its Preferred
Securities in exchange for Depositary Shares validly tendered in the Offer and
delivering such Depositary Shares to Ford in consideration of the deposit by
Ford as Trust assets of Junior Subordinated Debentures having an aggregate
stated principal amount equal to the aggregate stated liquidation amount of such
Preferred Securities, and (ii) its Common Securities to Ford in exchange for
cash and investing the proceeds thereof in an equivalent amount of Junior
Subordinated Debentures and (b) engaging in such other activities as are
necessary or incidental thereto. The
29
<PAGE> 36
rights of the holders of the Preferred Securities, including economic rights,
rights to information and voting rights, are set forth in the Declaration, the
Business Trust Act and the Trust Indenture Act.
Under the Declaration, the Trust shall not, and the Trustees (including the
Institutional Trustee) shall cause the Trust not to, engage in any activity
other than in connection with the purposes of the Trust or other than as
required or authorized by the Declaration. In particular, the Trust shall not
and the Trustees (including the Institutional Trustee) shall not (a) invest any
proceeds received by the Trust from holding the Junior Subordinated Debentures
but shall promptly distribute all such proceeds to holders of Trust Securities
pursuant to the terms of the Declaration and of the Trust Securities; (b)
acquire any assets other than as expressly provided in the Declaration; (c)
possess Trust property for other than a Trust purpose; (d) make any investments,
other than investments represented by the Junior Subordinated Debentures; (e)
possess any power or otherwise act in such a way as to vary the Trust assets or
the terms of the Trust Securities in any way whatsoever; (f) issue any
securities or other evidences of beneficial ownership of, or beneficial
interests in, the Trust other than the Trust Securities; (g) incur any
indebtedness for borrowed money or (h)(1) direct the time, method and place of
exercising any trust or power conferred upon the Indenture Trustee with respect
to the Junior Subordinated Debentures, (2) waive any past default that is
waivable under Section 5.13 of the Indenture, (3) exercise any right to rescind
or annul any declaration that the principal of all of the Junior Subordinated
Debentures shall be due and payable or (4) consent to any amendment,
modification or termination of the Indenture or the Junior Subordinated
Debentures or the Declaration, in each case where such consent shall be
required, unless in the case of this clause (h) the Institutional Trustee shall
have received an unqualified opinion of nationally recognized independent tax
counsel recognized as expert in such matters to the effect that such action will
not cause the Trust to be classified for United States federal income tax
purposes as an association taxable as a corporation or a partnership and that
the Trust will continue to be classified as a grantor trust for United States
federal income tax purposes.
The books and records of the Trust will be maintained at the principal
office of the Trust and will be open for inspection by a holder of Preferred
Securities or the duly authorized representative of such holder for any purpose
reasonably related to its interest in the Trust during normal business hours.
The Trust anticipates that it will not be required to file with the Commission
or distribute to holders of Preferred Securities periodic reports regarding the
Trust.
Except as provided below or under the Business Trust Act and the Trust
Indenture Act, holders of Preferred Securities will have no voting rights. See
"Description of the Preferred Securities -- Voting Rights".
The Institutional Trustee, for the benefit of the holders of the Trust
Securities, is authorized under the Declaration to exercise all rights under the
Indenture with respect to the Junior Subordinated Debentures and to enforce
Ford's obligations under the Junior Subordinated Debentures upon the occurrence
of an Indenture Event of Default. The Institutional Trustee shall also be
authorized to enforce the rights of holders of Preferred Securities under the
Preferred Securities Guarantee. If the Trust's failure to make distributions on
the Preferred Securities is a consequence of Ford's exercise of its right to
extend the interest payment period for the Junior Subordinated Debentures, the
Institutional Trustee will have no right to enforce the payment of distributions
on the Preferred Securities until an Event of Default shall have occurred.
Holders of at least a majority in liquidation amount of the Preferred Securities
will have the right to direct the Institutional Trustee with respect to certain
matters under the Declaration and the Preferred Securities Guarantee. If the
Institutional Trustee fails to enforce its rights under the Indenture or fails
to enforce the Preferred Securities Guarantee, any holder of Preferred
Securities may institute a legal proceeding against Ford to enforce such rights
or the Preferred Securities Guarantee, as the case may be. See "Description of
the Preferred Securities -- Voting Rights".
If an Indenture Event of Default occurs and is continuing with respect to
Junior Subordinated Debentures, an Event of Default under the Declaration will
occur and be continuing with respect to the Trust Securities. In such event, the
Declaration provides that the holders of Common Securities will be deemed to
have waived any such Event of Default with respect to the Common Securities
until all Events of Default with respect to the Preferred Securities have been
cured or waived. Until all such Events of Default with respect to the Preferred
Securities have been so cured or waived, the Institutional Trustee will be
deemed to be acting
30
<PAGE> 37
solely on behalf of the holders of the Preferred Securities and only the holders
of the Preferred Securities will have the right to direct the Institutional
Trustee with respect to certain matters under the Declaration and consequently
under the Indenture. If any Event of Default with respect to the Preferred
Securities is waived by the holders of the Preferred Securities as provided in
the Declaration, the holders of Common Securities pursuant to the Declaration
have agreed that such waiver also constitutes a waiver of such Event of Default
with respect to the Common Securities for all purposes under the Declaration
without any further act, vote or consent of the holders of the Common
Securities. See "Description of the Preferred Securities".
The Declaration provides that the Trustees may treat the person in whose
name a Preferred Security is registered on the books and records of the Trust as
the sole holder thereof and of the Preferred Securities represented thereby for
purposes of receiving distributions and for all other purposes and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such certificate or in the Preferred Securities represented thereby on the part
of any person, whether or not the Trust shall have actual or other notice
thereof. Preferred Securities will be issued in fully registered form. Investors
may elect to hold their Preferred Securities directly or, subject to the rules
and procedures of The Depository Trust Company, Midwest Securities Trust Company
and Philadelphia Depository Trust Company (the "Depository Institutions")
described under "Description of the Preferred Securities -- Book-Entry; Delivery
and Form", hold interests in a global certificate registered on the books and
records of the Trust in the name of a Depository Institution or its nominee.
Under the Declaration:
(i) the Trust and the Trustees shall be entitled to deal with a
Depository Institution (or any successor depositary) for all purposes,
including the payment of distributions and receiving approvals, votes or
consents under the Declaration, and except as set forth in the Declaration,
shall have no obligation to persons owning Preferred Securities ("Preferred
Security Beneficial Owners") registered in the name of and held by a
Depository Institution or its nominee; and
(ii) the rights of Preferred Security Beneficial Owners shall be
exercised only through a Depository Institution (or any successor
depository) and shall be limited to those established by law and agreements
between such Preferred Security Beneficial Owners and a Depository
Institution and/or its participants. See "Description of the Preferred
Securities -- Book-Entry; Delivery and Form". With respect to Preferred
Securities registered in the name of and held by a Depository Institution
or its nominee, all notices and other communications required under the
Declaration shall be given to, and all distributions on such Preferred
Securities shall be given or made to, a Depository Institution (or its
successor).
In the Declaration, Ford has agreed to pay for all debts and obligations
(other than with respect to the Trust Securities) and all costs and expenses of
the Trust, including the fees and expenses of the Trustees and any taxes and all
costs and expenses with respect thereto, to which the Trust may become subject,
except for United States withholding taxes. See "Special Considerations Relating
to the Offer -- Trust Distributions Dependent on Ford's Payments on Junior
Subordinated Debentures". The foregoing obligations of Ford under the
Declaration are for the benefit of, and shall be enforceable by, any person to
whom any such debts, obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not such Creditor has received notice thereof. Any such
Creditor may enforce such obligations of Ford directly against Ford and Ford has
irrevocably waived any right or remedy to require that any such Creditor take
any action against the Trust or any other person before proceeding against Ford.
Ford has agreed in the Declaration to execute such additional agreements as may
be necessary or desirable in order to give full effect to the foregoing.
THE FOREGOING SUMMARY OF CERTAIN PROVISIONS OF THE DECLARATION DOES NOT
PURPORT TO BE COMPLETE AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE
DECLARATION WHICH HAS BEEN FILED AS AN EXHIBIT TO THE REGISTRATION STATEMENT OF
WHICH THIS PROSPECTUS IS A PART.
The business address of the Trust is c/o Ford Motor Company, The American
Road, Dearborn, Michigan 48121, telephone number (313) 322-3000.
31
<PAGE> 38
THE OFFER
PURPOSE OF THE OFFER
The purpose of the Offer is to refinance the Depositary Shares with the
Preferred Securities and to achieve certain tax efficiencies while preserving
Ford's flexibility with respect to future financings. This refinancing will
permit Ford to deduct interest payable on the Junior Subordinated Debentures for
United States federal income tax purposes; dividends payable with regard to the
Depositary Shares are not deductible.
GENERAL
PARTICIPATION IN THE OFFER IS VOLUNTARY AND HOLDERS OF DEPOSITARY SHARES
SHOULD CAREFULLY CONSIDER WHETHER TO ACCEPT. NEITHER THE BOARD OF DIRECTORS OF
FORD, THE TRUSTEES NOR THE TRUST MAKES ANY RECOMMENDATION TO HOLDERS AS TO
WHETHER TO TENDER OR REFRAIN FROM TENDERING IN THE OFFER. HOLDERS OF DEPOSITARY
SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX ADVISORS IN MAKING THEIR
DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES.
SEE "PRICE RANGE OF DEPOSITARY SHARES".
Unless the context requires otherwise, the term "Holder" with respect to
the Offer means (i) any person in whose name any Depositary Shares are
registered on the books of Ford or (ii) any other person who has obtained a
properly completed stock power from the registered holder, or (iii) any person
whose Depositary Shares are held of record by a Depository Institution.
TERMS OF THE OFFER
Upon the terms and subject to the conditions set forth herein and in the
Letter of Transmittal, the Trust will exchange its Preferred Securities for up
to 44,600,000 of the outstanding Depositary Shares. The Offer will be effected
on a basis of one Preferred Security for each Depositary Share validly tendered
and accepted for exchange. See "-- Procedures for Tendering". Upon the terms and
subject to the conditions set forth herein and in the Letter of Transmittal, the
Trust will accept up to 44,600,000 Depositary Shares validly tendered and not
withdrawn prior to the Expiration Date and, unless the Offer has been withdrawn
or terminated, will deliver Preferred Securities in exchange therefor to
tendering Holders of Depositary Shares as promptly as practicable following the
Expiration Date. The Trust expressly reserves the right, in its sole discretion,
to delay acceptance for exchange of Depositary Shares tendered under the Offer
and the delivery of the Preferred Securities with respect to the Depositary
Shares accepted for exchange (subject to Rules 13e-4 and 14e-1 under the
Exchange Act, which require that the Trust consummate the Offer or return the
Depositary Shares deposited by or on behalf of the Holders thereof promptly
after the termination or withdrawal of the Offer), or to amend, withdraw or
terminate the Offer at any time prior to the Expiration Date for any of the
reasons set forth in "-- Conditions to the Offer" and "-- Expiration Date;
Extensions; Amendments; Termination".
In all cases, except to the extent waived by the Trust, delivery of
Preferred Securities issued with respect to the Depositary Shares accepted for
exchange pursuant to the Offer will be made only after timely receipt by the
Exchange Agent of Depositary Shares (or confirmation of book-entry transfer
thereof), a properly completed and duly executed Letter of Transmittal and any
other documents required thereby.
As of the date of this Prospectus, there are 45,600,000 Depositary Shares
outstanding. This Prospectus, together with the Letter of Transmittal, is being
sent to all registered Holders as of [ ] , 1995.
The Trust shall be deemed to have accepted validly tendered Depositary
Shares (or defectively tendered Depositary Shares with respect to which the
Trust has waived such defect) when, as and if the Trust has given oral or
written notice thereof to the Exchange Agent. The Exchange Agent will act as
agent for the tendering Holders for the purpose of receiving Depositary Shares
from, and remitting Preferred Securities to, tendering Holders who are
participating in the Offer. Upon the terms and subject to the conditions of the
Offer, delivery of Preferred Securities to tendering Holders will be made as
promptly as practicable following the Expiration Date.
32
<PAGE> 39
If proration of tendered Depositary Shares is required, because of the
difficulty in determining the number of Depositary Shares validly tendered
(including shares tendered by the guaranteed delivery procedures described in
"-- Procedures for Tendering"), the Trust does not expect that it would be able
to announce the final proration factor or to commence the exchange for any
Depositary Shares pursuant to the Offer until approximately five Business Days
after the Expiration Date. Preliminary results of the proration will be
announced by press release as promptly as practicable after the Expiration Date.
Holders of Depositary Shares may obtain such preliminary information from the
Dealer Managers, the Information Agent or the Exchange Agent and may also be
able to obtain such information from their brokers.
Until the final proration factors are known, the Trust will not issue any
Preferred Securities in exchange for any Depositary Shares accepted for exchange
pursuant to the Offer or return Depositary Shares delivered to the Exchange
Agent but not tendered or return Depositary Shares tendered but not accepted for
exchange because of proration.
If any tendered Depositary Shares are not accepted for exchange because of
an invalid tender, proration, the occurrence of certain other events set forth
herein or otherwise, unless otherwise requested by the Holder under "Special
Delivery Instructions" in the Letter of Transmittal, such Depositary Shares will
be returned, without expense, to the tendering Holder thereof (or in the case of
Depositary Shares tendered by book-entry transfer into the Exchange Agent's
account at a Depository Institution, such Depositary Shares will be credited to
an account maintained at the Depository Institution designated by the
participant therein who so delivered such Depositary Shares), as promptly as
practicable after the Expiration Date or the withdrawal or termination of the
Offer.
Holders of Depositary Shares will not have any appraisal or dissenters'
rights under the Delaware General Corporation Law in connection with the Offer.
The Trust intends to conduct the Offer in accordance with the applicable
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder.
Holders who tender Depositary Shares in the Offer will not be required to
pay brokerage commissions or fees or, subject to the instructions in the Letter
of Transmittal, transfer taxes with respect to the exchange of Depositary Shares
pursuant to the Offer. See "Fees and Expenses; Transfer Taxes".
Holders tendering Depositary Shares held in global form shall receive
Preferred Securities in global form and holders tendering Depositary Shares held
directly in certificated form shall receive Preferred Securities in certificated
form, in each case unless otherwise specified in the Letter of Transmittal. See
"-- Procedures for Tendering".
CONDITIONS TO THE OFFER
Notwithstanding any other provisions of any of the Offer, or any extension
of the Offer, the Trust will not be required to deliver Preferred Securities in
respect of any properly tendered Depositary Shares and may terminate the Offer
by oral or written notice to the Exchange Agent and the holders of Depositary
Shares, or, at its option, may modify or otherwise amend the Offer (other than
with respect to the Minimum Distribution Condition) with respect to such
Depositary Shares if any of the following conditions are not satisfied at or
prior to the Expiration Date in the case of clauses (a) and (b) below or if any
of the events specified in clauses (c) through (e) occurs at or prior to the
exchange date for the Depositary Shares:
(a) receipt of at least 12,000,000 validly tendered Depositary Shares
in the Offer;
(b) tenders by a sufficient number of holders of Depositary Shares to
satisfy the Minimum Distribution Condition;
(c) any action has been taken or threatened, or any statute, rule,
regulation, judgment, order, stay, decree or injunction has been
promulgated, enacted, entered, enforced or deemed applicable to the Offer,
by or before any court or governmental regulatory or administrative agency
or authority or tribunal, domestic or foreign, which (i) challenges the
making of the Offer, or might directly or indirectly prohibit, prevent,
restrict or delay consummation of the Offer, or otherwise and adversely
affect in any material manner the Offer or (ii) could materially adversely
affect the business, condition (financial or otherwise),
33
<PAGE> 40
income, operations, properties, assets, liabilities or prospects of Ford
and its subsidiaries, taken as a whole or materially impair the
contemplated benefits of the Offer to Ford:
(d) any event has occurred or is likely to occur affecting the
business or financial affairs of Ford that would or might prohibit,
prevent, restrict or delay consummation of the Offer or that will, or is
reasonably likely to, materially impair the contemplated benefits of the
Offer or might be material to holders of Depositary Shares in deciding
whether to accept the Offer; and
(e) any of the following events shall have occurred (i) any general
suspension of or limitation on trading in securities on the NYSE or in the
over-the-counter market (whether or not mandatory), (ii) any significant
adverse change in the price of the Depositary Shares or in the United
States securities or financial markets, (iii) a material impairment in the
trading market for debt or equity securities, (iv) a declaration of a
banking moratorium or any suspension of payments in respect of banks by
federal or state authorities in the United States (whether or not
mandatory), (v) a commencement of a war, armed hostilities or other
national or international crisis directly or indirectly relating to the
United States, (vi) any limitation (whether or not mandatory) by any
governmental authority on, or other event having a reasonable likelihood of
affecting, the extension of credit by banks or other lending institutions
in the United States, (vii) any significant adverse change in United States
securities or financial markets generally or in the case of any of the
foregoing existing at the time of the commencement of the Offer, a material
acceleration or worsening thereof.
The foregoing conditions are for the sole benefit of the Trust and Ford
and, except for the Minimum Distribution Condition may be waived by the Trust
and Ford, in whole or in part, in their sole discretion. Any determination made
by Ford or the Trust concerning an event, development or circumstance described
or referred to above will be final and binding on all parties.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS; TERMINATION
The Offer will expire on the Expiration Date. The Trust expressly reserves
the right, in its sole discretion, subject to applicable law, to (i) terminate
the Offer, and not accept for exchange any Depositary Shares and promptly return
all Depositary Shares upon the failure of any of the conditions specified above
in "-- Conditions to the Offer", (ii) waive any condition to the Offer (other
than the Minimum Distribution Condition) and accept all Depositary Shares
previously tendered pursuant to the Offer, (iii) extend the Expiration Date of
the Offer and retain all Depositary Shares tendered pursuant to the Offer until
the Expiration Date, subject, however, to all withdrawal rights of holders, see
"-- Withdrawal of Tenders", (iv) amend the terms of the Offer or (v) modify the
form of the consideration to be paid pursuant to the Offer. Any amendment
applicable to the Offer will apply to all Depositary Shares tendered pursuant to
the Offer. During any extension of the Offer, all Depositary Shares previously
tendered pursuant to the Offer and not withdrawn will remain subject to the
Offer.
If the Trust makes a material change in the terms of the Offer, the Trust
will extend the Offer. The minimum period for which the Offer will be extended
following a material change, other than a change in the amount of Depositary
Shares sought for exchange or an increase or decrease in the consideration
offered to Holders of Depositary Shares, will depend upon the facts and
circumstances, including the relative materiality of the change. With respect to
an increase or decrease in the number of Depositary Shares sought in the Offer
or an increase or decrease in the consideration offered to Holders of Depositary
Shares, if required, the Offer will remain open for a minimum of ten Business
Days following public announcement of such change. In the case of any amendment,
withdrawal or termination of the Offer, a public announcement will be issued no
later than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date of the Offer subject to such extension. If
the Trust withdraws or terminates the Offer, it will give immediate notice to
the Exchange Agent, and all Depositary Shares theretofore tendered pursuant to
the Offer will be returned promptly to the tendering Holders thereof. See "--
Withdrawal of Tenders". In order to satisfy the NYSE listing requirements,
acceptance of Depositary Shares validly tendered in the Offer is subject to the
Minimum Distribution Condition, which condition may not be waived.
34
<PAGE> 41
PROCEDURES FOR TENDERING
The tender of Depositary Shares by a Holder thereof pursuant to one of the
procedures set forth below will constitute an agreement between such Holder and
the Trust in accordance with the terms and subject to the conditions set forth
herein and in the Letter of Transmittal.
Each Holder of Depositary Shares wishing to participate in the Offer must
(i) properly complete and sign the Letter of Transmittal in accordance with the
instructions contained herein and in the Letter of Transmittal, together with
any required signature guarantees, and deliver the same to the Exchange Agent,
at one of its addresses set forth on the back cover page hereof prior to the
Expiration Date and either (a) certificates for the Depositary Shares must be
received by the Exchange Agent at such address or (b) such Depositary Shares
must be transferred pursuant to the procedures for book-entry transfer described
below and a confirmation of such book-entry transfer must be received by the
Exchange Agent, in each case prior to the Expiration Date, or (ii) comply with
the guaranteed delivery procedures described below.
IN ORDER TO PARTICIPATE IN THE OFFER, HOLDERS OF DEPOSITARY SHARES MUST
SUBMIT A LETTER OF TRANSMITTAL AND COMPLY WITH THE OTHER PROCEDURES FOR
TENDERING IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN THE LETTER
OF TRANSMITTAL PRIOR TO THE EXPIRATION DATE.
LETTERS OF TRANSMITTAL, DEPOSITARY SHARES AND ANY OTHER REQUIRED DOCUMENTS
SHOULD BE SENT ONLY TO THE EXCHANGE AGENT, NOT TO THE TRUST, FORD, THE DEALER
MANAGERS OR THE INFORMATION AGENT.
Special Procedure for Beneficial Owners. Any beneficial owner whose
Depositary Shares are registered in the name of a broker, dealer, commercial
bank, trust company or other nominee and who wishes to tender should contact
such registered Holder promptly and instruct such registered Holder to tender on
such beneficial owner's behalf. If such beneficial owner wishes to tender on its
own behalf, such owner must, prior to completing and executing the Letter of
Transmittal and delivering its Depositary Shares, either make appropriate
arrangements to register ownership of the Depositary Shares in such owner's name
or obtain a properly completed stock power from the registered Holder. The
transfer of registered ownership may take considerable time and may not be able
to be completed prior to the Expiration Date.
THE METHOD OF DELIVERY OF DEPOSITARY SHARES AND ALL OTHER DOCUMENTS IS AT
THE ELECTION AND RISK OF THE HOLDER. IF SENT BY MAIL, IT IS RECOMMENDED THAT
REGISTERED MAIL, RETURN RECEIPT REQUESTED, BE USED, INSURANCE BE OBTAINED, AND
THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE TO PERMIT
DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE EXPIRATION DATE.
Signature Guarantees. If tendered Depositary Shares are registered in the
name of the signer of the Letter of Transmittal and the Preferred Securities to
be issued in exchange therefor are to be issued (and any untendered Depositary
Shares are to be reissued) in the name of the registered Holder, the signature
of such signer need not be guaranteed. If the tendered Depositary Shares are
registered in the name of someone other than the signer of the Letter of
Transmittal, or if Preferred Securities issued in exchange therefor are to be
issued in the name of any person other than the signer of the Letter of
Transmittal, such tendered Depositary Shares must be endorsed or accompanied by
written instruments of transfer in form satisfactory to the Trust and duly
executed by the registered Holder, and the signature on the endorsement or
instrument of transfer must be guaranteed by a financial institution (including
most banks, savings and loans associations and brokerage houses) that is a
participant in the Security Transfer Agents Medallion Program or the Stock
Exchange Medallion Program (any of the foregoing hereinafter referred to as an
"Eligible Institution"). If the Preferred Securities and/or the Depositary
Shares are not exchanged or are to be delivered to an address other than that of
the registered Holder appearing on the register for the Depositary Shares, the
signature in the Letter of Transmittal must be guaranteed by an Eligible
Institution.
Book-Entry Transfer. The Trust understands that the Exchange Agent will
make a request promptly after the date of this Prospectus to establish accounts
with respect to the Depositary Shares at a Depository Institution for the
purpose of facilitating the Offer, and subject to the establishment thereof, any
financial
35
<PAGE> 42
institution that is a participant in a Depository Institution's system may make
book-entry delivery of Depositary Shares by causing the Depository Institution
to transfer such Depositary Shares into the Exchange Agent's account with
respect to the Depositary Shares in accordance with such Depository
Institution's Automated Tender Offer Program ("ATOP") procedures for such
book-entry transfers. However, the exchange for the Depositary Shares so
tendered will only be made after timely confirmation (a "Book-Entry
Confirmation") of such Book-Entry Transfer of Depositary Shares into the
Exchange Agent's account, and timely receipt by the Exchange Agent of an Agent's
Message (as such term is defined in the next sentence) and any other documents
required by the Letter of Transmittal. The term "Agent's Message" means a
message, transmitted by a Depository Institution and received by the Exchange
Agent and forming a part of a Book-Entry Confirmation, which states that such
Depository Institution has received an express acknowledgment from a participant
tendering Depositary Shares that is the subject of such Book-Entry Confirmation,
that such participant has received and agrees to be bound by the terms of the
Letter of Transmittal, and that the Trust may enforce such agreement against
such participant.
Guaranteed Delivery. If a Holder desires to participate in the Offer and
time will not permit a Letter of Transmittal or Depositary Shares to reach the
Exchange Agent before the Expiration Date or the procedure for book-entry
transfer cannot be completed on a timely basis, a tender may be effected if the
Exchange Agent has received at one of its addresses on the back cover page
hereof prior to the Expiration Date, a letter, telegram or facsimile
transmission from an Eligible Institution setting forth the name and address of
the tendering Holder, the name(s) in which the Depositary Shares are registered
and, if the Depositary Shares are held in certificated form, the certificate
numbers of the Depositary Shares to be tendered, and stating that the tender is
being made thereby and guaranteeing that within three NYSE trading days after
the date of execution of such letter, telegram or facsimile transmission by the
Eligible Institution, the Depositary Shares in proper form for transfer together
with a properly completed and duly executed Letter of Transmittal (and any other
required documents), or a confirmation of book-entry transfer of such Depositary
Shares into the Exchange Agent's account at a Depository Institution, will be
delivered by such Eligible Institution. Unless the Depositary Shares being
tendered by the above-described method are deposited with the Exchange Agent
within the time period set forth above (accompanied or preceded by a properly
completed Letter of Transmittal and any other required documents) or a
confirmation of book-entry transfer of such Depositary Shares into the Exchange
Agent's account at the Depository Institution in accordance with such Depository
Institution's ATOP procedures is received, the Trust may, at its option, reject
the tender. In addition to the copy being transmitted herewith, copies of a
Notice of Guaranteed Delivery which may be used by Eligible Institutions for the
purposes described in this paragraph are available from the Exchange Agent and
the Information Agent.
Miscellaneous. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance for exchange of any tender of
Depositary Shares will be determined by the Trust, whose determination will be
final and binding. The Trust reserves the absolute right to reject any or all
tenders not in proper form or the acceptance for exchange of which may, in the
opinion of the Trust's counsel, be unlawful. The Trust also reserves the
absolute right to waive any defect or irregularity in the tender of any
Depositary Shares, and the Trust's interpretation of the terms and conditions of
the Offer (including the instructions in the Letter of Transmittal) will be
final and binding. None of the Trust, the Exchange Agent, the Dealer Managers,
the Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification.
Tenders of Depositary Shares involving any irregularities will not be
deemed to have been made until such irregularities have been cured or waived.
Depositary Shares received by the Exchange Agent that are not validly tendered
and as to which the irregularities have not been cured or waived will be
returned by the Exchange Agent to the tendering Holder (or in the case of
Depositary Shares tendered by book-entry transfer into the Exchange Agent's
account at a Depository Institution, such Depositary Shares will be credited to
an account maintained at the Depository Institution designated by the
participant therein who so delivered such Depositary Shares), unless otherwise
requested by the Holder in the Letter of Transmittal, as promptly as practicable
after the Expiration Date or the withdrawal or termination of the Offer.
36
<PAGE> 43
LETTER OF TRANSMITTAL
The Letter of Transmittal contains, among other things, the following terms
and conditions, which are part of the Offer.
The party tendering Depositary Shares for exchange (the "Transferor")
exchanges, assigns and transfers the Depositary Shares to the Trust, and
irrevocably constitutes and appoints the Exchange Agent as the Transferor's
agent and attorney-in-fact to cause the Depositary Shares to be assigned,
transferred and exchanged. The Transferor represents and warrants that it has
full power and authority to tender, exchange, assign and transfer the Depositary
Shares and the underlying Series B Preferred and to acquire Preferred Securities
issuable upon the exchange of such tendered Depositary Shares and that, when
such Transferor's Depositary Shares are accepted for exchange, the Trust will
acquire good and unencumbered title to such tendered Depositary Shares and the
underlying Series B Preferred, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim. The Transferor
also warrants that it will, upon request, execute and deliver any additional
documents deemed by the Trust to be necessary or desirable to complete the
exchange, assignment and transfer of tendered Depositary Shares or transfer
ownership of such Depositary Shares on the account books maintained by the
Depository Institution. All authority conferred by the Transferor will survive
the death, bankruptcy or incapacity of the Transferor and every obligation of
the Transferor shall be binding upon the heirs, legal representatives,
successors, assigns, executors and administrators of such Transferor.
WITHDRAWAL OF TENDERS
Tenders of Depositary Shares pursuant to the Offer may be withdrawn at any
time prior to the Expiration Date and, unless accepted for exchange by the
Trust, may be withdrawn at any time after 40 Business Days after the date of
this Prospectus.
To be effective, a written notice of withdrawal delivered by mail, hand
delivery or facsimile transmission must be timely received by the Exchange Agent
at one of its addresses set forth on the back cover page hereof. The method of
notification is at the risk and election of the Holder. Any such notice of
withdrawal must specify (i) the Holder named in the Letter of Transmittal as
having tendered Depositary Shares to be withdrawn, (ii) if the Depositary Shares
are held in certificated form, the certificate numbers of the Depositary Shares
to be withdrawn, (iii) that such Holder is withdrawing his election to have such
Depositary Shares exchanged and (iv) the name of the registered Holder of such
Depositary Shares, and must be signed by the Holder in the same manner as the
original signature on the Letter of Transmittal (including any required
signature guarantees) or be accompanied by evidence satisfactory to the Trust
that the person withdrawing the tender has succeeded to the beneficial ownership
of the Depositary Shares being withdrawn. The Exchange Agent will return the
properly withdrawn Depositary Shares promptly following receipt of notice of
withdrawal. If Depositary Shares have been tendered pursuant to the procedure
for book-entry transfer, any notice of withdrawal must specify the name and
number of the account at a Depository Institution to be credited with the
withdrawn Depositary Shares and otherwise comply with such Depository
Institution procedures. All questions as to the validity of notice of
withdrawal, including time of receipt, will be determined by the Trust, and such
determination will be final and binding on all parties. Withdrawals of tenders
of Depositary Shares may not be rescinded and any Depositary Shares withdrawn
will thereafter be deemed not validly tendered for purposes of the Offer.
Properly withdrawn Depositary Shares, however, may be retendered by following
the procedures therefor described elsewhere herein at any time prior to the
Expiration Date. See "-- Procedures for Tendering".
ACCEPTANCE OF SHARES AND PRORATION
Upon the terms and subject to the conditions of the Offer, including the
Minimum Distribution Condition, if 44,600,000 or fewer Depositary Shares have
been validly tendered and not withdrawn prior to the Expiration Date, the Trust
will accept for exchange all such Depositary Shares. Upon the terms and subject
to the conditions of the Offer, if more than 44,600,000 Depositary Shares have
been validly tendered and not withdrawn prior to the Expiration Date, the Trust
will accept for exchange Depositary Shares from each
37
<PAGE> 44
tendering Holder on a pro rata basis, subject to adjustment to avoid the
acceptance for exchange of fractional shares.
If the Trust decides, in its sole discretion, to increase or decrease the
number of Depositary Shares sought in the Offer or to increase or decrease the
consideration offered to Holders of Depositary Shares, and if the Offer is
scheduled to expire less than ten Business Days from and including the date that
notice of such increase or decrease is first published, sent or given in the
manner specified in "-- Expiration Date; Extensions; Amendments; Termination",
then the Offer will be extended for a minimum of ten Business Days from and
including the date of such notice.
All Depositary Shares not accepted pursuant to the Offer, including shares
not accepted because of proration, will be returned to the tendering Holders at
the Trust's expense as promptly as practicable following the Expiration Date.
38
<PAGE> 45
EXCHANGE AGENT AND INFORMATION AGENT
Chemical Bank has been appointed as Exchange Agent for the Offer.
The Exchange Agent:
By Mail: By Facsimile Transmission By Hand or Overnight Courier:
(For Eligible Institutions Only):
Attention: [ ] Attention:
[ ] [ ]
Confirm Receipt of Notice of Guaranteed Delivery
by Telephone:
[ ]
Georgeson & Company Inc. has been retained as the Information Agent to
assist in connection with the Offer. Questions and requests for assistance
regarding the Offer, requests for additional copies of this Prospectus, the
Letter of Transmittal and requests for Notice of Guaranteed Delivery may be
directed to the Information Agent. Banks and brokers call collect:
[ ]
Ford will pay the Exchange Agent and Information Agent reasonable and
customary fees for their services and will reimburse them for all their
reasonable out-of-pocket expenses in connection therewith.
DEALER MANAGERS; SOLICITING DEALERS
Merrill Lynch & Co., Dean Witter Reynolds Inc., A.G. Edwards & Sons, Inc.,
Goldman, Sachs & Co., Lehman Brothers, PaineWebber Incorporated and Smith Barney
Inc. as Dealer Managers, have agreed to solicit exchanges of Depositary Shares
for Preferred Securities. Ford will pay the Dealer Managers a fee of $0.125 per
Depositary Share accepted pursuant to the Offer. The maximum fee payable to the
Dealer Managers is approximately $5,575,000 plus any amount that the Dealer
Managers may be entitled to pursuant to the next paragraph. Ford will also
reimburse the Dealer Managers for certain reasonable out-of-pocket expenses in
connection with the Offer and will indemnify the Dealer Managers against certain
liabilities, including liabilities under the Securities Act. The Dealer Managers
engage in transactions with, and from time to time have performed services for,
Ford, including acting as underwriters for the issuance of the Depositary
Shares.
Ford will pay to a Soliciting Dealer a solicitation fee of $0.50 per
Depositary Share validly tendered and accepted for exchange pursuant to the
Offer. As used in this Prospectus, "Soliciting Dealer" includes (i) any broker
or dealer in securities, including a Dealer Manager in its capacity as a broker
or dealer, who is a member of any national securities exchange or of the
National Association of Securities Dealers, Inc. (the "NASD"), (ii) any foreign
broker or dealer not eligible for membership in the NASD who agrees to conform
to the NASD's Rules of Fair Practice in soliciting tenders outside the United
States to the same extent as though it were an NASD member, or (iii) any bank or
trust company, any one of whom has solicited and obtained a tender pursuant to
the Offer. No solicitation fee shall be payable to a Soliciting Dealer with
respect to the tender of depositary receipts evidencing Depositary Shares by a
Holder unless the Letter of Transmittal accompanying such tender designates such
Soliciting Dealer as such in the box captioned "Solicited Tenders".
If tendered Depositary Shares are being delivered by book-entry transfer
made to an account maintained by the Exchange Agent with Depository
Institutions, the Soliciting Dealer must return a Notice of Solicited
39
<PAGE> 46
Tenders (included in the materials provided to brokers and dealers) to the
Exchange Agent within three trading days after the Expiration Date in order to
receive a solicitation fee. No solicitation fee shall be payable to a Soliciting
Dealer in respect of Depositary Shares (i) beneficially owned by such Soliciting
Dealer or (ii) registered in the name of such Soliciting Dealer unless such
Depositary Shares are held by such Soliciting Dealer as nominee and such
Depositary Shares are being tendered for the benefit of one or more beneficial
owners identified on the Letter of Transmittal or the Notice of Solicited
Tenders. No solicitation fee shall be payable to the Soliciting Dealer with
respect to the tender of Depositary Shares by the Holder of record, for the
benefit of the beneficial owner, unless the beneficial owner has designated such
Soliciting Dealer.
No solicitation fee shall be payable to a Soliciting Dealer if such
Soliciting Dealer is required for any reason to transfer any portion of such fee
to a tendering Holder (other than itself). No broker, dealer, bank, trust
company or fiduciary shall be deemed to be the agent of Ford, the Exchange
Agent, the Information Agent or the Dealer Managers for purposes of the Offer.
Other than as described above, Ford will not pay any solicitation fees to
any broker, dealer, bank, trust company or other person for any Depositary
Shares exchanged in connection with the Offer. Ford will reimburse such persons
for customary handling and mailing expenses incurred in connection with the
Offer.
Additional solicitations may be made by telephone, in person or otherwise
by officers and regular employees of Ford and its affiliates. No additional
compensation will be paid to any such officers and employees who engage in
soliciting tenders.
LISTING AND TRADING OF PREFERRED SECURITIES AND DEPOSITARY SHARES
The Preferred Securities constitute a new issue of securities with no
established trading market. While an application will be filed to list the
Preferred Securities on the NYSE, there can be no assurance that an active
market for the Preferred Securities will develop or be sustained in the future
on such exchange. Although the Dealer Managers have indicated to the Trust that
they intend to make a market in the Preferred Securities following the
Expiration Date as permitted by applicable laws and regulations prior to the
commencement of trading on the NYSE, they are not obligated to do so and may
discontinue any such market-making at any time without notice. Accordingly, no
assurance can be given as to the liquidity of, or trading markets for, the
Preferred Securities. In order to satisfy the NYSE listing requirements,
acceptance of Depositary Shares validly tendered in the Offer is subject to the
Minimum Distribution Condition, which condition may not be waived.
To the extent that Depositary Shares are tendered and accepted in the
Offer, the terms on which untendered Depositary Shares could subsequently be
sold could be adversely affected. In addition, if the Offer is substantially
subscribed or oversubscribed, there would be a significant risk that round lot
holdings of Depositary Shares outstanding following the Offer would be limited.
See "Special Considerations Relating to the Offer -- Lack of Established Trading
Market for Preferred Securities" and "-- Reduced Trading Market for Depositary
Shares".
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<PAGE> 47
TRANSACTIONS AND ARRANGEMENTS CONCERNING THE OFFER
Except as described herein, there are no contracts, arrangements,
understandings or relationships in connection with the Offer between Ford or any
of its directors or executive officers, the Trust or the Trustees and any person
with respect to any securities of Ford or the Trust, including the Junior
Subordinated Debentures, the Series B Preferred, the Depositary Shares and the
Preferred Securities.
FEES AND EXPENSES; TRANSFER TAXES
The expenses of soliciting tenders of the Depositary Shares will be borne
by Ford. For compensation to be paid to the Dealer Managers and Soliciting
Dealers, see "The Offer -- Dealer Managers; Soliciting Dealers". The total cash
expenditures to be incurred by Ford in connection with the Offer, other than
fees payable to the Dealer Managers and Soliciting Dealers, but including the
expenses of the Dealer Managers, printing, accounting and legal fees, and the
fees and expenses of the Exchange Agent, the Information Agent, the
Institutional Trustee, the Delaware Trustee and the Indenture Trustee, are
estimated to be approximately $[ ].
Ford will pay all transfer taxes, if any, applicable to the exchange of
Depositary Shares pursuant to the Offer. If, however, certificates representing
Preferred Securities or Depositary Shares not tendered or accepted for exchange,
are to be delivered to, or are to be issued in the name of, any person other
than the registered Holder of the Depositary Shares tendered or if a transfer
tax is imposed for any reason other than the exchange of Depositary Shares
pursuant to the Offer, then the amount of any such transfer taxes (whether
imposed on the registered Holder or any other persons) will be payable by the
tendering Holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering Holder.
PRICE RANGE OF DEPOSITARY SHARES
The Depositary Shares are listed and principally traded on the NYSE. The
following table sets forth, for each period shown, the high and low sales prices
of the Depositary Shares as reported on the NYSE Composite Tape.
<TABLE>
<CAPTION>
HIGH LOW
---- ----
<S> <C> <C>
YEAR ENDED DECEMBER 31, 1993
1st Quarter.............................................................. $ 27 $25 1/4
2nd Quarter.............................................................. 27 5/8 26 1/8
3rd Quarter.............................................................. 27 3/4 26 3/4
4th Quarter.............................................................. 28 5/8 26 1/2
YEAR ENDED DECEMBER 31, 1994
1st Quarter.............................................................. 28 25 5/8
2nd Quarter.............................................................. 26 24 5/8
3rd Quarter.............................................................. 26 25
4th Quarter.............................................................. 25 1/4 23 1/2
YEAR ENDING DECEMBER 31, 1995
1st Quarter.............................................................. 26 1/8 24 1/4
2nd Quarter.............................................................. 27 1/4 25 3/4
3rd Quarter (through August 31, 1995).................................... 27 1/2 26 1/2
</TABLE>
On [ ], the last full day of trading prior to the first public
announcement of the Offer, the closing sales price of Depositary Shares on the
NYSE as reported on the Composite Tape was [$ ] per share. Stockholders are
urged to obtain a current market quotation for Depositary Shares.
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<PAGE> 48
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the
Declaration which will be qualified under the Trust Indenture Act. The Bank of
New York as the Institutional Trustee, but not the other Trustees of the Trust,
will act as the indenture trustee for purposes of the Trust Indenture Act. The
terms of the Preferred Securities and the Declaration include those stated in
the Declaration and those made part of the Declaration by the Trust Indenture
Act. The description of the Preferred Securities and the Declaration set forth
below summarizes the material terms thereof and is subject to, and qualified in
its entirety by reference to, the Declaration, which has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a part, the
Business Trust Act and the Trust Indenture Act.
GENERAL
The Declaration authorizes the Trust to issue the Preferred Securities,
which represent preferred undivided beneficial interests in the assets of the
Trust, and the Common Securities, which represent common undivided beneficial
interests in the assets of the Trust. All of the Common Securities will be
owned, directly or indirectly, by Ford. The Common Securities and the Preferred
Securities will have equivalent terms except that (i) if an Event of Default
under the Declaration occurs and is continuing, the rights of the holders of the
Common Securities to payment in respect of periodic distributions and payments
upon liquidation, redemption or otherwise are subordinated to the rights of the
holders of the Preferred Securities and (ii) holders of Common Securities have
the exclusive right (subject to the terms of the Declaration) to appoint, remove
or replace Trustees and to increase or decrease the number of Trustees. The
Declaration does not permit the issuance by the Trust of any securities or other
evidences of beneficial ownership of, or beneficial interests in, the Trust
other than the Preferred Securities and the Common Securities, the incurrence of
any indebtedness for borrowed money by the Trust or the making of any investment
other than in the Junior Subordinated Debentures. The payment of distributions
out of moneys held by the Trust and payments on redemption of the Preferred
Securities or liquidation of the Trust are guaranteed by Ford on a subordinated
basis as and to the extent described under "Description of the Preferred
Securities Guarantee". The Institutional Trustee will hold the Preferred
Securities Guarantee for the benefit of holders of the Preferred Securities. The
Preferred Securities Guarantee is a full and unconditional guarantee from the
time of issuance of the Preferred Securities, but the Preferred Securities
Guarantee covers distributions and other payments on the Preferred Securities
only if and to the extent that Ford has made a payment to the Institutional
Trustee of interest or principal on the Junior Subordinated Debentures deposited
in the Trust as trust assets. Notwithstanding such limitation, the Preferred
Securities Guarantee, when taken together with Ford's obligations under the
Junior Subordinated Debentures and its obligation to pay costs, expenses and
certain liabilities of the Trust pursuant to the Declaration, constitutes a full
and unconditional guarantee of amounts due on the Preferred Securities.
DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at a rate per annum
of [ %] of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears will bear interest thereon at the rate per annum of
[ %], compounded quarterly to the extent permitted by applicable law. The term
"distributions" as used herein includes any such cash distributions and any such
interest payable unless otherwise stated. The amount of distributions payable
for any period will be computed on the basis of a 360-day year of twelve 30-day
months and for any period shorter than a full quarterly period for which
distributions are computed, the amount of the distribution payable will be
computed on the basis of the actual number of days elapsed in such a 30-day
month.
Distributions on the Preferred Securities will be cumulative, will accrue
from the Accrual Date and, except as otherwise described below, will be payable
quarterly in arrears, on March 31, June 30, September 30 and December 31 of each
year, commencing on December 31, 1995, but only if, and to the extent that,
interest payments are made in respect of Junior Subordinated Debentures held by
the Trust. In addition, holders of Preferred Securities will be entitled to an
additional cash distribution at the rate of 8.25% per annum of the liquidation
amount thereof from [ ] through the Expiration Date in lieu of
dividends accumulating
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<PAGE> 49
after [ ] on their Depositary Shares accepted for exchange, such
additional distribution to be made on December 31, 1995 to holders of the
Preferred Securities on the record date for such distribution.
So long as Ford shall not be in default in the payment of interest on the
Junior Subordinated Debentures, Ford has the right under the Indenture to defer
payments of interest on the Junior Subordinated Debentures by extending the
interest payment period from time to time on the Junior Subordinated Debentures
for a period not exceeding 20 consecutive quarterly interest periods and, as a
consequence, quarterly distributions on the Preferred Securities would not be
made (but would continue to accrue with interest thereon at the rate of [ %]
per annum, compounded quarterly to the extent permitted by applicable law) by
the Trust during any such Extension Period. If Ford exercises the right to
extend an interest payment period, Ford may not declare or pay dividends on, or
redeem, purchase, acquire or make a distribution or liquidation payment with
respect to, any of its common stock or preferred stock during such Extension
Period; or any other securities similar to the Preferred Securities or the
Junior Subordinated Debentures provided that Ford will be permitted to pay
dividends (and cash in lieu of fractional shares) upon the conversion, other
than at the option of Ford, of any of its preferred stock, including its Series
A Cumulative Convertible Preferred Stock, in accordance with the terms of such
stock. Any Extension Period with respect to payment of interest on the Junior
Subordinated Debentures, other debt securities of Ford under the Indenture or on
any similar securities will apply to all such securities and will also apply to
distributions with respect to the Preferred Securities and all other securities
with similar terms. Prior to the termination of any such Extension Period, Ford
may further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed 20
consecutive quarterly interest periods. Upon the termination of any Extension
Period and the payment of all amounts then due, Ford may commence a new
Extension Period, subject to the above requirements. Ford may also prepay at any
time all or any portion of the interest accrued during an Extension Period.
Consequently, there could be multiple Extension Periods of varying lengths (up
to six Extension Periods of 20 consecutive quarterly interest periods each or
more numerous shorter Extension Periods) throughout the term of the Junior
Subordinated Debentures, provided that no Extension Period may extend beyond the
maturity of the Junior Subordinated Debentures. See "Special Considerations
Relating to the Offer -- Ford May Defer Interest Payments on Junior Subordinated
Debentures"; "Description of the Junior Subordinated Debentures -- Interest" and
"-- Option to Extend Interest Payment Period". Payments of accrued distributions
will be payable to holders of Preferred Securities as they appear on the books
and records of the Trust on the first record date after the end of an Extension
Period.
Distributions on the Preferred Securities must be paid on the dates payable
to the extent that the Institutional Trustee has cash on hand to permit such
payment. The funds available for distribution to the holders of the Preferred
Securities will be limited to payments received by the Trust in respect of the
Junior Subordinated Debentures that are deposited in the Trust as trust assets.
See "Description of the Junior Subordinated Debentures". If Ford does not make
interest payments on the Junior Subordinated Debentures, the Trust will not make
distributions on the Preferred Securities. Under the Declaration, if and to the
extent Ford does make interest payments on the Junior Subordinated Debentures
deposited in the Trust as trust assets, the Trust is obligated to make
distributions on the Trust Securities on a Pro Rata Basis. The payment of
distributions on the Preferred Securities is guaranteed by Ford on a
subordinated basis as and to the extent set forth under "Description of the
Preferred Securities Guarantee". The Preferred Securities Guarantee is a full
and unconditional guarantee from the time of issuance of the Preferred
Securities but the Preferred Securities Guarantee covers distributions and other
payments on the Preferred Securities only if and to the extent that Ford has
made a payment to the Trust of interest or principal on the Junior Subordinated
Debentures deposited in the Trust as trust assets. The liquidation amount of
each Common Security is $25 per share.
Distributions on the Preferred Securities will be made to the holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which will be 15 days immediately prior to the relevant
distribution dates. The Declaration provides that the payment dates or record
dates for the Preferred Securities shall be the same as the payment dates and
record dates for the Junior Subordinated Debentures. Distributions payable on
any Preferred Securities that are not punctually paid on any distribution date
as a result of Ford having failed to make the corresponding interest payment on
the Junior Subordinated Debentures will forthwith cease to be payable to the
person in whose name such Preferred Security is
43
<PAGE> 50
registered on the relevant record date, and such defaulted distribution will
instead be payable to the person in whose name such Preferred Security is
registered on the special record date established by the Regular Trustees, which
record date shall correspond to the special record date or other specified date
determined in accordance with the Indenture; provided, however, that
distributions shall not be considered payable on any distribution payment date
falling within an Extension Period unless Ford has elected to make a full or
partial payment of interest accrued on the Junior Subordinated Debentures on
such distribution payment date. Distributions on the Preferred Securities will
be paid by the Trust. All distributions paid with respect to the Trust
Securities shall be paid on a Pro Rata Basis to the holders thereof entitled
thereto. If any date on which distributions are to be made on the Preferred
Securities is not a Business Day, then payment of the distribution to be made on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
If, at any time, a Tax Event or an Investment Company Event (each as
hereinafter defined, and each a "Special Event") shall occur and be continuing,
the Trust shall, unless the Junior Subordinated Debentures are redeemed in the
limited circumstances described below, be dissolved with the result that, after
satisfaction of creditors of the Trust, Junior Subordinated Debentures with an
aggregate principal amount equal to the aggregate stated liquidation amount of
the Preferred Securities and the Common Securities would be distributed on a Pro
Rata Basis to the holders of the Preferred Securities and the Common Securities
in liquidation of such holders' interests in the Trust, within 90 days following
the occurrence of such Special Event; provided, however, that in the case of the
occurrence of a Tax Event, as a condition of such dissolution and distribution,
the Regular Trustees shall have received an opinion of nationally recognized
independent tax counsel experienced in such matters (a "No Recognition
Opinion"), which opinion may rely on any then applicable published revenue
rulings of the Internal Revenue Service, to the effect that the holders of the
Preferred Securities will not recognize any gain or loss for United States
federal income tax purposes as a result of such dissolution and distribution of
Junior Subordinated Debentures; and, provided, further, that, if at the time
there is available to the Trust the opportunity to eliminate, within such 90-day
period, the Special Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar reasonable measure,
which has no adverse effect on the Trust or Ford or the holders of the Preferred
Securities, the Trust will pursue such measure in lieu of dissolution.
Furthermore, if in the case of the occurrence of a Tax Event, (i) the Regular
Trustees have received an opinion (a "Redemption Tax Opinion") of nationally
recognized independent tax counsel experienced in such matters that, as a result
of a Tax Event, there is more than an insubstantial risk that Ford would be
precluded from deducting the interest on the Junior Subordinated Debentures for
United States federal income tax purposes even if the Junior Subordinated
Debentures were distributed to the holders of Preferred Securities and Common
Securities in liquidation of such holders' interests in the Trust as described
above or (ii) the Regular Trustees shall have been informed by such tax counsel
that a No Recognition Opinion cannot be delivered to the Trust, Ford shall have
the right, upon not less than 10 nor more than 60 days' notice, to redeem the
Junior Subordinated Debentures in whole or in part for cash within 90 days
following the occurrence of such Tax Event, and promptly following such
redemption Preferred Securities and Common Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Junior
Subordinated Debentures so redeemed will be redeemed by the Trust at the
Redemption Price on a Pro Rata Basis; provided, however, that if at the time
there is available to Ford or the Regular Trustees the opportunity to eliminate,
within such 90-day period, the Tax Event by taking some ministerial action, such
as filing a form or making an election, or pursuing some other similar
reasonable measure, which has no adverse effect on the Trust, Ford or the
holders of the Preferred Securities, Ford will pursue such measure in lieu of
redemption and provided further that Ford shall have no right to redeem the
Junior Subordinated Debentures while the Regular Trustees on behalf of the Trust
are pursuing any such ministerial action. The Common Securities will be redeemed
on a Pro Rata Basis with the Preferred Securities, except that if an Event of
Default under the Declaration has occurred and is continuing, the
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Preferred Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained an opinion
of nationally recognized independent tax counsel experienced in such matters (a
"Dissolution Tax Opinion") to the effect that on or after the Expiration Date as
a result of (a) any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) any amendment
to, or change in, an interpretation or application of any such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or (d)
any action taken by any governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or effective or which
interpretation or pronouncement is issued or announced or which action is taken,
in each case on or after the Expiration Date, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to income
accrued or received on the Junior Subordinated Debentures, (ii) the Trust is, or
will be within 90 days of the date thereof, subject to more than a de minimis
amount of other taxes, duties or other governmental charges or (iii) interest
payable by Ford to the Trust on the Junior Subordinated Debentures is not, or
within 90 days of the date thereof will not be, deductible by Ford for United
States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel experienced in
practice under the Investment Company Act of 1940, as amended (the "1940 Act"),
that as a result of the occurrence of a change in law or regulation or a change
in interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be considered
an "investment company" which is required to be registered under the 1940 Act,
which Change in 1940 Act Law becomes effective on or after the Expiration Date.
On the date fixed for any distribution of Junior Subordinated Debentures,
upon dissolution of the Trust, (i) the Preferred Securities and the Common
Securities will no longer be deemed to be outstanding and (ii) certificates
representing Preferred Securities will be deemed to represent Junior
Subordinated Debentures having an aggregate principal amount equal to the stated
liquidation amount of, and bearing accrued and unpaid interest equal to accrued
and unpaid distributions on, such Preferred Securities until such certificates
are presented to Ford or its agent for transfer or reissuance.
There can be no assurance as to the market price for the Junior
Subordinated Debentures which may be distributed in exchange for Preferred
Securities if a dissolution and liquidation of the Trust were to occur.
Accordingly, the Junior Subordinated Debentures which the investor may
subsequently receive on dissolution and liquidation of the Trust may trade at a
discount to the price of the Preferred Securities exchanged. If the Junior
Subordinated Debentures are distributed to the holders of Preferred Securities
upon the dissolution of the Trust, Ford will use its best efforts to list the
Junior Subordinated Debentures on the NYSE or on such other exchange on which
the Preferred Securities are then listed.
MANDATORY REDEMPTION
Upon the repayment of the Junior Subordinated Debentures, whether at
maturity, upon redemption or otherwise, the proceeds from such repayment or
payment will be promptly applied to redeem Preferred Securities and Common
Securities having an aggregate liquidation amount equal to the Junior
Subordinated Debentures so repaid, upon not less than 10 nor more than 60 days'
notice, at the Redemption Price. The Common Securities will be entitled to be
redeemed on a Pro Rata Basis with the Preferred Securities, except that if an
Event of Default under the Declaration has occurred and is continuing, the
Preferred Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price. Subject to the foregoing, if fewer
than all outstanding Preferred Securities and Common Securities are to be
redeemed, the Preferred Securities and Common Securities will be redeemed on a
Pro Rata Basis. In the event fewer than all
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outstanding Preferred Securities are to be redeemed, Preferred Securities
registered in the name of and held by a Depository Institution or its nominee
will be redeemed pro rata as described under "-- Book-Entry; Delivery and Form"
below.
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accrued and unpaid distributions have been paid on all
Preferred Securities for all quarterly distribution periods terminating on or
prior to the date of redemption.
If the Trust gives a notice of redemption in respect of Preferred
Securities (which notice will be irrevocable), then immediately prior to the
close of business on the redemption date, provided that Ford has paid to the
Trust a sufficient amount of cash in connection with the related redemption or
maturity of the Junior Subordinated Debentures, distributions will cease to
accrue on the Preferred Securities called for redemption, such Preferred
Securities shall no longer be deemed to be outstanding and all rights of holders
of such Preferred Securities so called for redemption will cease, except the
right of the holders of such Preferred Securities to receive the Redemption
Price, but without interest on such Redemption Price. Neither the Trustees nor
the Trust shall be required to register or cause to be registered the transfer
of any Preferred Securities which have been so called for redemption. If any
date fixed for redemption of Preferred Securities is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If Ford fails to repay Junior Subordinated Debentures
on maturity or on the date fixed for a redemption or if payment of the
Redemption Price in respect of Preferred Securities is improperly withheld or
refused and not paid by the Trust or by Ford pursuant to the Preferred
Securities Guarantee described under "Description of the Preferred Securities
Guarantee", distributions on such Preferred Securities will continue to accrue
from the original redemption date of the Preferred Securities to the date of
payment in which case the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption Price.
If a partial redemption of the Preferred Securities would result in the
delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, Ford
pursuant to the Indenture will only redeem the Junior Subordinated Debentures in
whole and, as a result, the Trust may only redeem the Preferred Securities in
whole.
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), Ford or any of its subsidiaries may at
any time and from time to time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the holders of the Preferred Securities and Common
Securities at the date of dissolution, winding-up or termination of the Trust
will be entitled to receive on a Pro Rata Basis solely out of the assets of the
Trust, after satisfaction of liabilities of creditors (to the extent not
satisfied by Ford as provided in the Declaration), an amount equal to the
aggregate of the stated liquidation amount of $25 per Trust Security plus
accrued and unpaid distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
dissolution, winding-up or termination, Junior Subordinated Debentures in an
aggregate principal amount equal to the aggregate stated liquidation amount of
such Trust Securities, and bearing accrued and unpaid interest in an amount
equal to the accrued and unpaid distributions on such Trust Securities, shall be
distributed on a Pro Rata Basis to the holders of the Preferred Securities and
Common Securities in exchange therefor.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Preferred Securities and the Common Securities shall be paid on a
Pro Rata Basis.
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The holders of the Common Securities will be entitled to receive distributions
upon any such dissolution on a Pro Rata Basis with the holders of the Preferred
Securities, except that if an Event of Default under the Declaration has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities with respect to payment of the Liquidation Distribution.
Pursuant to the Declaration, the Trust shall terminate: (i) on December 31,
2026, (ii) when all of the Trust Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been paid
to the holders of Trust Securities in accordance with the terms of the Trust
Securities, or (iii) when all of the Junior Subordinated Debentures shall have
been distributed to the holders of Trust Securities in exchange for all of the
Trust Securities in accordance with the terms of the Trust Securities.
NO MERGER, CONSOLIDATION OR AMALGAMATION OF THE TRUST
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets to, any
corporation or other entity.
DECLARATION EVENTS OF DEFAULT
An Indenture Event of Default will constitute an Event of Default under the
Declaration; provided that pursuant to the Declaration, the holder of the Common
Securities will be deemed to have waived any such Event of Default with respect
to the Common Securities until all Events of Default with respect to the
Preferred Securities have been cured or waived. Until all such Events of Default
with respect to the Preferred Securities have been cured or waived, the
Institutional Trustee will be deemed to be acting solely on behalf of the
holders of the Preferred Securities, and only the holders of the Preferred
Securities will have the right to direct the Institutional Trustee with respect
to certain matters under the Declaration and consequently under the Indenture.
In the event that any Event of Default with respect to the Preferred Securities
is waived by the holders of the Preferred Securities as provided in the
Declaration, the holders of Common Securities pursuant to the Declaration have
agreed that such waiver also constitutes a waiver of such Event of Default with
respect to the Common Securities for all purposes under the Declaration without
any further act, vote or consent of the holders of the Common Securities. See
"-- Voting Rights".
Upon the occurrence of an Event of Default, the Institutional Trustee will
have the right under the Indenture to declare the principal of and interest on
the Junior Subordinated Debentures to be immediately due and payable. In
addition, the Institutional Trustee will have the power to exercise all rights,
powers and privileges under the Indenture. See "Description of the Junior
Subordinated Debentures".
VOTING RIGHTS
Except as provided below, under "-- Modification and Amendment of the
Declaration" and "Description of the Preferred Securities Guarantee --
Amendments and Assignment" and as otherwise required by the Business Trust Act,
the Trust Indenture Act and the Declaration, the holders of the Preferred
Securities will have no voting rights.
Subject to the requirements of the second to last sentence of this
paragraph, the holders of a majority in aggregate liquidation amount of the
Preferred Securities have the right (i) on behalf of all holders of Trust
Securities, to waive any past default that is waivable under the Declaration and
(ii) to direct the time, method and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Declaration; provided,
however, that the holders of the Preferred Securities will vote as a single
class (the "Capital Trust Voting Class") with any holders of any other preferred
undivided beneficial interests of a Ford Motor Company Capital Trust, such as
the Preferred Securities, similarly situated with respect to debt securities
issued pursuant to the Indenture (including the Junior Subordinated Debentures)
with respect to the right to direct an Institutional Trustee, to (x) direct the
time, method and place of conducting any proceeding for any remedy available to
the Indenture Trustee or exercising any trust or power conferred on the
Indenture Trustee with respect to debt securities issued pursuant to the
Indenture (including the Junior Subordinated Debentures), (y) waive any past
default that is waivable under Section 5.13 of the Indenture with respect to
debt securities issued pursuant to the
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Indenture (including the Junior Subordinated Debentures) or (z) exercise any
right to rescind or annul a declaration that the principal of all debt
securities issued pursuant to the Indenture (including the Junior Subordinated
Debentures) shall be due and payable; provided that where a consent under the
Indenture would require the consent of (1) holders of debt securities issued
pursuant to the Indenture (including Junior Subordinated Debentures)
representing a specified percentage greater than a majority in principal amount
of such securities or (2) each holder of such securities affected thereby, no
such consent shall be given by any Trustee without the prior consent of, in the
case of clause (1) above, holders of securities in the Capital Trust Voting
Class representing such specified percentage or, in the case of clause (2)
above, each holder of securities in the Capital Trust Voting Class affected
thereby. The Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the holders of Preferred Securities. The
Institutional Trustee shall notify all holders of record of Preferred Securities
of any notice of default received from the Indenture Trustee with respect to the
Junior Subordinated Debentures. Other than with respect to directing the time,
method and place of conducting any proceeding for any remedy available to the
Institutional Trustee or the Indenture Trustee as set forth above, the
Institutional Trustee shall be under no obligation to take any of the foregoing
actions at the direction of the holders of the Preferred Securities unless the
Institutional Trustee shall have obtained an opinion of nationally recognized
independent tax counsel recognized as expert in such matters to the effect that
the Trust will not be classified for United States federal income tax purposes
as an association taxable as a corporation or a partnership on account of such
action and will be treated as a grantor trust for United States federal income
tax purposes following such action. If the Institutional Trustee fails to
enforce its rights under the Declaration, any holder of Preferred Securities may
enforce such rights, institute a legal proceeding directly against Ford to
enforce the Institutional Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Institutional Trustee or any other
Person.
A waiver of an Indenture Event of Default by the Institutional Trustee at
the direction of holders of the Preferred Securities will constitute a waiver of
the corresponding Event of Default under the Declaration in respect of the Trust
Securities.
In the event the consent of the Trust as the holder of the Junior
Subordinated Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Junior
Subordinated Debentures, the Institutional Trustee shall request the direction
of the holders of the Trust Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a majority in liquidation amount of
the Trust Securities voting together in the Capital Trust Voting Class,
provided, however, that where any such amendment, modification or termination
under the Indenture would require the consent of (i) holders of debt securities
issued pursuant to the Indenture representing a specified percentage greater
than a majority in principal amount of such securities or (ii) each holder of
such debt securities, the Trustee may only give such consent at the direction of
the holders of securities in the Capital Trust Voting Class representing such
specified percentage in the case of clause (i) above, or each holder of
securities in the Capital Trust Voting Class affected thereby, in the case of
clause (ii) above; and, provided, further, that the Institutional Trustee shall
be under no obligation to take any such action in accordance with the directions
of the holders of the Trust Securities unless the Institutional Trustee has
obtained an opinion of nationally recognized independent tax counsel recognized
as expert in such matters to the effect that the Trust will not be classified
for United States federal income tax purposes as an association taxable as a
corporation or a partnership on account of such action and will be treated as a
grantor trust for United States federal income tax purposes following such
action.
Any required approval or direction of holders of Preferred Securities may
be given at a separate meeting of holders of Preferred Securities convened for
such purpose, at a meeting of all of the holders of Trust Securities or pursuant
to written consent. The Regular Trustees will cause a notice of any meeting at
which holders of Preferred Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
mailed to each holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such holders are entitled to
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vote or of such matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
No vote or consent of the holders of Preferred Securities will be required
for the Trust to redeem and cancel Preferred Securities or distribute Junior
Subordinated Debentures in accordance with the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the Preferred
Securities at such time that are owned by Ford or by any entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with Ford shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if they were not outstanding.
The procedures by which persons owning Preferred Securities registered in
the name of and held by a Depositary Institution or its nominee may exercise
their voting rights are described under "-- Book-Entry; Delivery and Form"
below.
Holders of the Preferred Securities will have no rights to increase or
decrease the number of Trustees or to appoint, remove or replace a Trustee,
which rights are vested exclusively in the holders of the Common Securities.
MODIFICATION AND AMENDMENT OF THE DECLARATION
The Declaration may be modified and amended on approval of a majority of
the Regular Trustees, provided that, (i) if any proposed modification or
amendment provides for, or the Regular Trustees otherwise propose to effect, (A)
any action that would adversely affect the powers, preferences or special rights
of the Trust Securities, whether by way of amendment to the Declaration or
otherwise, or (B) the dissolution, winding-up or termination of the Trust other
than pursuant to the terms of the Declaration, then the holders of the
outstanding Trust Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of at least a majority in liquidation amount of the
Trust Securities, provided that if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a majority in liquidation amount of such class of
Trust Securities.
Notwithstanding the foregoing, (i) no amendment or modification may be made
to the Declaration unless the Regular Trustees shall have obtained (A) either a
ruling from the Internal Revenue Service or a written unqualified opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that such amendment will not cause the Trust to be classified for United
States federal income tax purposes as an association taxable as a corporation or
a partnership and to the effect that the Trust will continue to be treated as a
grantor trust for purposes of United States federal income taxation and (B) a
written unqualified opinion of nationally recognized independent counsel
experienced in such matters to the effect that such amendment will not cause the
Trust to be an "investment company" which is required to be registered under the
1940 Act; (ii) certain specified provisions of the Declaration may not be
amended without the consent of all of the holders of the Trust Securities, (iii)
no amendment which adversely affects the rights, powers and privileges of the
Institutional Trustee shall be made without the consent of the Institutional
Trustee, (iv) Article IV of the Declaration relating to the obligation of Ford
to purchase the Common Securities and to pay certain obligations and expenses of
the Trust as described under "Ford Motor Company Capital Trust I" may not be
amended without the consent of Ford, and (v) the rights of holders of Common
Securities under Article V of the Declaration to increase or decrease the number
of, and to appoint, replace or remove, Trustees shall not be amended without the
consent of each holder of Common Securities.
The Declaration further provides that it may be amended without the consent
of the holders of the Trust Securities to (i) cure any ambiguity, (ii) correct
or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration, (iii) add to the
covenants, restrictions or obligations of Ford, (iv) preserve the status of the
Trust as a grantor trust for federal income tax purposes, and (v) to conform to
changes in, or a change in interpretation or application of certain 1940 Act
requirements
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by the Commission, which amendment does not adversely affect the rights,
preferences or privileges of the holders of Trust Securities.
BOOK-ENTRY; DELIVERY AND FORM
Preferred Securities will be issued in fully registered form. Investors may
elect to hold their Preferred Securities directly or, subject to the rules and
procedures of a Depository Institution described below, hold interests in a
global certificate (the "Preferred Securities Global Certificate") registered in
the name of a Depository Institution or its nominee. However, tendering holders
of Depositary Shares held in global form shall initially receive an interest in
the Preferred Securities Global Certificate and tendering holders of Depositary
Shares held directly in certificated form shall initially receive Preferred
Securities in certificated form, in each case unless otherwise specified in the
Letter of Transmittal. See "The Offer -- Procedures for Tendering".
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in a global Preferred
Security.
A Depository Institution holds securities that its participants
("Participants") deposit with the Depository Institution. A Depository
Institution also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations ("Direct Participants").
A Depository Institution is owned by a number of its Direct Participants and by
the NYSE, the American Stock Exchange, Inc., and the National Association of
Securities Dealers, Inc. Access to the Depository Institution's system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to a Depository Institution and its Participants are on file with the
Commission.
Upon issuance of a Preferred Securities Global Certificate, the Depository
Institution will credit on its book-entry registration and transfer system the
number of Preferred Securities represented by such Preferred Securities Global
Certificate to the accounts of institutions that have accounts with the
Depository Institution. Ownership of beneficial interests in a Preferred
Securities Global Certificate will be limited to Participants or persons that
may hold interests through Participants. The ownership interest of each actual
purchaser of each Preferred Security ("Beneficial Owner") is in turn to be
recorded on the Direct and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from the Depository Institution of their
purchases, but Beneficial Owners are expected to receive written confirmations
providing details of the transactions, as well as periodic statements of their
holdings, from the Direct or Indirect Participants through which the Beneficial
Owners purchased Preferred Securities. Transfers of ownership interests in the
Preferred Securities are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners.
A Depository Institution has no knowledge of the actual Beneficial Owners
of the Preferred Securities; a Depository Institution's records reflect only the
identity of the Direct Participants to whose accounts such Preferred Securities
are credited, which may or may not be the Beneficial Owners. The Participants
will remain responsible for keeping account of their holdings on behalf of their
customers. So long as a Depository Institution, or its nominee, is the owner of
a Preferred Securities Global Certificate, a Depository Institution or such
nominee, as the case may be, will be considered the sole owner and holder of
record of the Preferred Securities represented by such Preferred Securities
Global Certificate for all purposes.
Conveyance of notices and other communications by a Depository Institution
to Direct Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
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Redemption notices shall be sent to the Depository Institution. If less
than all of the Preferred Securities are being redeemed, the Depository
Institution will reduce pro rata (subject to adjustment to eliminate fractional
Preferred Securities) the amount of interest of each Direct Participant in the
Preferred Securities to be redeemed.
Although voting with respect to the Preferred Securities is limited, in
those instances in which a vote is required, the Depository Institution will not
consent or vote with respect to Preferred Securities. Under its usual
procedures, the Depository Institution would mail an Omnibus Proxy to the Trust
as soon as possible after the record date. The Omnibus Proxy assigns the
Depository Institution's consenting or voting rights to those Direct
Participants to whose accounts the Preferred Securities are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Distribution payments on the Preferred Securities represented by a
Preferred Series Global Certificate will be made by the Trust to the Depository
Institution. The Depository Institution's practice is to credit Direct
Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on a Depository Institution's records unless the
Depository Institution has reason to believe that it will not receive payments
on such payment date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices and will be the
responsibility of such Participants and not of a Depository Institution, the
Trust or Ford, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of distributions to a Depository Institution
is the responsibility of the Trust, disbursement of such payments to Direct
Participants is the responsibility of the Depository Institution, and
disbursement of such payments to the Beneficial Owners is the responsibility of
Direct and Indirect Participants.
A Depository Institution may discontinue providing its services as
securities depository with respect to the Preferred Securities at any time by
giving reasonable notice to the Trust. Under such circumstances, if a
successor securities depository is not obtained, Preferred Security certificates
will be required to be printed and delivered. Additionally, the Trust may decide
to discontinue use of the system of book-entry transfers through the Depository
Institution (or a successor depository). In that event, certificates for the
Preferred Securities will be printed and delivered.
The information in this section concerning the Depository Institution and
the Depository Institution's book-entry system has been obtained from sources
that the Trust and Ford believe to be reliable, but the Trust and Ford take no
responsibility for the accuracy thereof.
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
Chemical Bank or one of its affiliates will act as registrar and transfer
agent for the Preferred Securities. Chemical Bank will also act as paying agent
and, with the consent of the Regular Trustees, may designate additional paying
agents.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of the Trust, but upon payment (with the giving of such
indemnity as the Trust or Ford may require) in respect of any tax or other
governmental charges that may be imposed in relation to it.
The Trust will not be required to register or cause to be registered the
transfer of Preferred Securities after such Preferred Securities have been
called for redemption.
INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
The Institutional Trustee, prior to a default with respect to the Trust
Securities, undertakes to perform only such duties as are specifically set forth
in the Declaration and, after default, shall exercise the same degree of care as
a prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provision, the Institutional Trustee is under no obligation to
exercise any of the powers vested in it by the Declaration at the request of any
holder of Preferred Securities, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might be incurred
thereby. The Institutional Trustee is not required to expend or risk its own
funds or otherwise incur personal financial liability in the performance of
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its duties if the Institutional Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it.
Ford and certain of its affiliates maintain deposit accounts and banking
relationships with the Institutional Trustee.
GOVERNING LAW
The Declaration and the Preferred Securities will be governed by, and
construed in accordance with, the laws of the State of Delaware.
MISCELLANEOUS
Application will be made to list the Preferred Securities on the NYSE. The
Regular Trustees are authorized and directed to take such action as they deem
reasonable in order that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act or that the Trust will not
be classified for United States federal income tax purposes as an association
taxable as a corporation or a partnership and will be treated as a grantor trust
for United States federal income tax purposes. In this connection, the Regular
Trustees are authorized to take any action, not inconsistent with applicable
law, the certificate of trust or the Declaration, that the Regular Trustees
determine in their discretion to be reasonable and necessary or desirable for
such purposes, as long as such action does not adversely affect the interests of
holders of the Trust Securities.
Ford and the Regular Trustees on behalf of the Trust will be required to
provide to the Institutional Trustee annually a certificate as to whether or not
Ford and the Trust, respectively, are in compliance with all the conditions and
covenants under the Declaration.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE
Set forth below is a summary of information concerning the Preferred
Securities Guarantee that will be executed and delivered by Ford for the benefit
of the holders from time to time of Preferred Securities. The Preferred
Securities Guarantee is separately qualified under the Trust Indenture Act and
will be held by The Bank of New York acting in its capacity as indenture trustee
with respect thereto, for the benefit of the holders of the Preferred
Securities. The terms of the Preferred Securities Guarantee include those stated
in such Guarantee and those made part of the Preferred Securities Guarantee by
the Trust Indenture Act. The summary set forth below does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the Preferred Securities Guarantee, which is
filed as an exhibit to the Registration Statement of which this Prospectus forms
a part, and the Trust Indenture Act.
GENERAL
Pursuant to the Preferred Securities Guarantee, Ford will irrevocably and
unconditionally agree, to the extent set forth therein, to pay in full, to the
holders of the Preferred Securities, the Guarantee Payments (as defined below)
(without duplication of amounts theretofore paid by the Trust), to the extent
not paid by the Trust, regardless of any defense, right of set-off or
counterclaim that the Trust may have or assert. The following payments or
distributions with respect to the Preferred Securities to the extent not paid or
made by the Trust (the "Guarantee Payments") will be subject to the Guarantee
(without duplication): (i) any accrued and unpaid distributions on the Preferred
Securities and the redemption price, including all accrued and unpaid
distributions to the date of the redemption, with respect to the Preferred
Securities called for redemption by the Trust but only if and to the extent that
in each case Ford has made a payment to the Institutional Trustee of interest or
principal on the Junior Subordinated Debentures and (ii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Trust (other than in
connection with the distribution of Junior Subordinated Debentures to holders of
Preferred Securities or the redemption of all of the Preferred Securities upon
the maturity or redemption of the Junior Subordinated Debentures) the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the Preferred
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Securities to the date of payment, to the extent the Trust has funds available
therefor, and (b) the amount of assets of the Trust remaining available for
distribution to holders of Preferred Securities in liquidation of the Trust.
Ford's obligation to make a Guarantee Payment may be satisfied by direct payment
of the required amounts by Ford to the holders of Preferred Securities or by
paying the required amount to the Trust and causing the Trust to pay such
amounts to such holders.
CERTAIN COVENANTS OF FORD
In the Preferred Securities Guarantee, Ford will covenant that, so long as
the Preferred Securities remain outstanding, Ford will not declare or pay any
dividends on, or redeem, purchase, acquire or make a distribution or liquidation
payment with respect to, any of its common stock or preferred stock or make any
guarantee payment with respect thereto or any other securities similar to the
Preferred Securities or the Junior Subordinated Debentures if at such time (i)
Ford shall be in default with respect to its Guarantee Payments or other payment
obligations under the Preferred Securities Guarantee, (ii) there shall have
occurred any event of default under the Indenture or (iii) Ford shall have given
notice of its selection of an Extension Period as provided in the Indenture and
such period, or any extension thereof, is continuing; provided that Ford will be
permitted to pay accrued dividends (and cash in lieu of fractional shares) upon
the conversion, other than at the option of Ford, of any of its preferred stock
including its Series A Cumulative Convertible Preferred Stock, in accordance
with the terms of such stock. In addition, so long as the Preferred Securities
remain outstanding, Ford has agreed (i) to remain the sole direct or indirect
owner of all of the outstanding Common Securities and shall not cause or permit
the Common Securities to be transferred except to the extent permitted by the
Declaration; provided that any permitted successor of Ford under the Indenture
may succeed to Ford's ownership of the Common Securities and (ii) to use
reasonable efforts to cause the Trust to continue to be treated as a grantor
trust for United States federal income tax purposes except in connection with a
distribution of Junior Subordinated Debentures.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities (in which case no consent will be required),
the Preferred Securities Guarantee may be amended only with the prior approval
of the holders of not less than a majority in liquidation amount of the
outstanding Preferred Securities. The manner of obtaining any such approval of
holders of the Preferred Securities will be as set forth under "Description of
the Preferred Securities -- Voting Rights". All guarantees and agreements
contained in the Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of Ford and shall inure to the
benefit of the holders of the Preferred Securities then outstanding. Except in
connection with a consolidation, merger or sale involving Ford that is permitted
under the Indenture, Ford may not assign its obligations under the Preferred
Securities Guarantee.
TERMINATION OF THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee will terminate and be of no further
force and effect as to the Preferred Securities upon full payment of the
Redemption Price of all Preferred Securities, or upon distribution of the Junior
Subordinated Debentures to the holders of Preferred Securities in exchange for
all of the Preferred Securities, or upon full payment of the amounts payable
upon liquidation of the Trust. Notwithstanding the foregoing, the Preferred
Securities Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of Preferred Securities must restore
payment of any sums paid with respect to the Preferred Securities or the
Preferred Securities Guarantee.
STATUS OF THE PREFERRED SECURITIES GUARANTEE
Ford's obligations under the Preferred Securities Guarantee to make the
Guarantee Payments will constitute an unsecured obligation of Ford and will rank
(i) subordinate and junior in right of payment to all Senior Indebtedness of
Ford, except obligations and securities made pari passu or subordinate by their
terms, and to the Junior Subordinated Debentures, and (ii) senior to all capital
stock now or hereafter issued by Ford, including the Depositary Shares, and to
any guarantee now or hereafter entered into by Ford in respect
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of any of its capital stock. The Declaration provides that each holder of
Preferred Securities by acceptance thereof agrees to the subordination
provisions and other terms of the Preferred Securities Guarantee.
The Preferred Securities Guarantee will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
guarantee without first instituting a legal proceeding against any other person
or entity). The Preferred Securities Guarantee will be deposited with the
Institutional Trustee, as Guarantee Trustee, to be held for the benefit of the
holders of the Preferred Securities. The Institutional Trustee shall enforce the
Preferred Securities Guarantee on behalf of the holders of the Preferred
Securities. The holders of not less than a majority in aggregate liquidation
amount of the Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available in respect of the
Preferred Securities Guarantee, including the giving of directions to the
Institutional Trustee. If the Institutional Trustee fails to enforce the
Preferred Securities Guarantee as above provided, any holder of Preferred
Securities may institute a legal proceeding directly against Ford to enforce its
rights under the Preferred Securities Guarantee, without first instituting a
legal proceeding against the Trust or any other person or entity.
GOVERNING LAW
The Preferred Securities Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of the Junior Subordinated Debentures
which will be deposited in the Trust as trust assets. The terms of the Junior
Subordinated Debentures include those stated in the Indenture dated ,
1995 between Ford and The Bank of New York, as trustee (the "Indenture
Trustee"), as supplemented by the First Supplemental Indenture dated ,
1995 between Ford and the Indenture Trustee (as so supplemented, the
"Indenture"), forms of which have been filed as exhibits to the Registration
Statement of which this Prospectus forms a part, and those made part of the
Indenture by the Trust Indenture Act. The following description does not purport
to be complete and is qualified in its entirety by reference to the Indenture
and the Trust Indenture Act. Whenever particular provisions or defined terms in
the Indenture are referred to herein, such provisions or defined terms are
incorporated by reference herein.
The Indenture provides for the issuance of debentures, notes (including the
Junior Subordinated Debentures) or other evidences of indebtedness by Ford
("Securities") in an unlimited amount from time to time. The Junior Subordinated
Debentures constitute a separate series under the Indenture.
Under certain circumstances involving the dissolution of the Trust
following the occurrence of a Special Event, Junior Subordinated Debentures may
be distributed to the holders of the Trust Securities in liquidation of the
Trust. See "Description of the Preferred Securities -- Special Event Redemption
or Distribution".
GENERAL
The Junior Subordinated Debentures are unsecured, subordinated obligations
of Ford, limited in aggregate principal amount to (i) the aggregate liquidation
preference of the Preferred Securities issued by the Trust in the Offer and (ii)
the proceeds received by the Trust upon issuance of the Common Securities to
Ford (which proceeds will be used to purchase an equal principal amount of
Junior Subordinated Debentures).
The Junior Subordinated Debentures mature on December 31, 2025. The Junior
Subordinated Debentures are not subject to any sinking fund.
If Junior Subordinated Debentures are distributed to holders of Preferred
Securities in dissolution of the Trust, such Junior Subordinated Debentures will
be so issued in fully registered certificated form in denominations of $25 and
integral multiples thereof and may be transferred or exchanged at the offices
described below.
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Payments of principal and interest on Junior Subordinated Debentures will
be payable, the transfer of the Junior Subordinated Debentures will be
registrable, and Junior Subordinated Debentures will be exchangeable for Junior
Subordinated Debentures of other denominations of a like aggregate principal
amount, at the corporate trust office of the Indenture Trustee in The City of
New York; provided that payments of interest may be made at the option of Ford
by check mailed to the address of the persons entitled thereto and that the
payment of principal with respect to any Junior Subordinated Debenture will be
made only upon surrender of such Junior Subordinated Debenture to the Indenture
Trustee.
If the Junior Subordinated Debentures are distributed to the holders of
Preferred Securities upon the dissolution of the Trust, Ford will use its best
efforts to list the Junior Subordinated Debentures on the NYSE or on such other
exchange on which the Preferred Securities are then listed.
The Indenture contains no provisions which would afford the holders of
Junior Subordinated Debentures protection in the event of a highly leveraged
transaction involving Ford or a change of control of Ford.
OPTIONAL REDEMPTION
Except as provided below, the Junior Subordinated Debentures may not be
redeemed prior to December 1, 2002. Ford shall have the right to redeem the
Junior Subordinated Debentures, in whole or in part, from time to time, on or
after December 1, 2002, upon not less than 10 nor more than 60 days' notice, at
a redemption price equal to 100% of the principal amount to be redeemed, plus
any accrued and unpaid interest, to the redemption date, including interest
accrued during an Extension Period. Ford will also have the right to redeem the
Junior Subordinated Debentures at any time upon the occurrence of a Tax Event if
certain conditions are met as described under "Description of the Preferred
Securities -- Special Event Redemption or Distribution".
If Ford gives a notice of redemption in respect of Junior Subordinated
Debentures (which notice will be irrevocable) then, by 12:00 noon, New York City
time, on the redemption date, Ford will deposit irrevocably with the Indenture
Trustee funds sufficient to pay the applicable redemption price and will give
irrevocable instructions and authority to pay such redemption price to the
holders of the Junior Subordinated Debentures. If notice of redemption shall
have been given and funds deposited as required, then upon the date of such
deposit, interest will cease to accrue on the Junior Subordinated Debentures
called for redemption, such Junior Subordinated Debentures will no longer be
deemed to be outstanding and all rights of holders of such Junior Subordinated
Debentures so called for redemption will cease, except the right of the holders
of such Junior Subordinated Debentures to receive the applicable redemption
price, but without interest on such redemption price. If any date fixed for
redemption of Junior Subordinated Debentures is not a Business Day, then payment
of the redemption price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in respect
of any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. If payment of the redemption price in respect of Junior Subordinated
Debentures is improperly withheld or refused and not paid by Ford, interest on
such Junior Subordinated Debentures will continue to accrue compounded
quarterly, from the original redemption date to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable redemption price. If fewer than all
of the Junior Subordinated Debentures are to be redeemed, the Junior
Subordinated Debentures to be redeemed shall be selected by lot or pro rata or
in some other equitable manner determined by the Indenture Trustee.
In the event of any redemption in part, Ford shall not be required to (i)
issue, register the transfer of or exchange of any Junior Subordinated
Debentures during a period beginning at the opening of business 15 days before
any selection for redemption of Junior Subordinated Debentures and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all holders of Junior Subordinated
Debentures to be redeemed and (ii) register the transfer of or exchange of any
Junior Subordinated Debentures so selected for redemption, in whole or in part,
except the unredeemed portion of any Junior Subordinated Debentures being
redeemed in part.
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INTEREST
The Junior Subordinated Debentures will bear interest at an annual rate of
[ %] from the Accrual Date. In addition, holders of the Junior Subordinated
Debentures will be entitled to Pre-Issuance Accrued Distribution at the rate of
8.25% per annum of the principal amount thereof from [ ]
through the Expiration Date, payable on December 31, 1995 to holders of the
Preferred Securities on the record date for such distributions. Interest will be
payable quarterly in arrears on March 31, June 30, September 30 and December 31
of each year (each, an "Interest Payment Date"), commencing on December 31,
1995, to the person in whose name such Junior Subordinated Debenture is
registered, subject to certain exceptions, at the close of business on the
Business Day next preceding such Interest Payment Date. Interest payable on any
Junior Subordinated Debenture that is not punctually paid or duly provided for
on any interest payment date will forthwith cease to be payable to the person in
whose name such Junior Subordinated Debenture is registered on the relevant
record date, and such defaulted interest will instead be payable to the person
in whose name such Junior Subordinated Debenture is registered on the special
record date or other specified date determined in accordance with the Indenture;
provided, however, that interest shall not be considered payable by Ford on any
interest payment date falling within an Extension Period unless Ford has elected
to make a full or partial payment of interest accrued on the Junior Subordinated
Debentures on such interest payment date.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which interest is computed, the amount of interest payable
will be computed on the basis of the actual number of days elapsed in such a 30-
day month. If any date on which interest is payable on the Junior Subordinated
Debentures is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as Ford shall not be in default in the payment of interest on the
Junior Subordinated Debentures, Ford shall have the right to extend the interest
payment period from time to time for a period not exceeding 20 consecutive
quarterly interest periods. Ford has no current intention of exercising its
right to extend an interest payment period. No extension of interest will be
permitted with respect to interest accruing from [ ] through
the Expiration Date. No interest shall be due and payable during an Extension
Period, except at the end thereof. During any Extension Period, Ford shall not
declare or pay any dividends on, or redeem, purchase, acquire or make a
distribution or liquidation payment with respect to, any of its common stock or
preferred stock or make any guarantee payments with respect thereto or any other
securities similar to the Preferred Securities or the Junior Subordinated
Debentures; provided that Ford will be permitted to pay dividends (and cash in
lieu of fractional shares) upon the conversion, at the option of Ford, of any of
its preferred stock, including its Series A Cumulative Convertible Preferred
Stock, in accordance with the terms of such stock. Any Extension Period with
respect to payment of interest on the Junior Subordinated Debentures, other debt
securities of Ford under the Indenture or on any similar securities will apply
to all such securities and will also apply to distributions with respect to the
Preferred Securities and all other securities with similar terms. Prior to the
termination of any such Extension Period, Ford may further extend the interest
payment period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed 20 consecutive quarterly
interest periods. On the interest payment date occurring at the end of each
Extension Period, Ford shall pay to the holders of Junior Subordinated
Debentures of record on the record date for such interest payment date
(regardless of who the holders of record may have been on other dates during the
Extension Period) all accrued and unpaid interest on the Junior Subordinated
Debentures, together with interest thereon at the rate specified for the Junior
Subordinated Debentures. Upon the termination of any Extension Period and the
payment of all amounts then due, Ford may commence a new Extension Period,
subject to the above requirements. Ford may also prepay at any time all or any
portion of the interest accrued during an Extension Period. Consequently, there
could be multiple Extension Periods of
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varying lengths (up to six Extension Periods of 20 consecutive quarterly
interest periods each or more numerous shorter Extension Periods) throughout the
term of the Junior Subordinated Debentures provided that no Extension Period may
extend beyond the maturity of the Junior Subordinated Debentures. The failure by
Ford to make interest payments during an Extension Period would not constitute a
default or an event of default under the Indenture or Ford's currently
outstanding indebtedness.
If the Trust shall be the sole holder of the Junior Subordinated
Debentures, Ford shall give the Institutional Trustee notice of its selection of
such Extension Period ten Business Days prior to the earlier of (i) the date the
distributions on the Preferred Securities are payable or (ii) the date the Trust
is required to give notice to the NYSE or other applicable self-regulatory
organization or to holders of the Preferred Securities of the record date or the
date such distribution is payable, but in any event not less than one Business
Day prior to such record date. The Trust shall give notice of Ford's selection
of such Extension Period to the holders of the Preferred Securities.
If Junior Subordinated Debentures have been distributed to holders of Trust
Securities, Ford shall give the holders of the Junior Subordinated Debentures
notice of its selection of such Extension Period ten Business Days prior to the
earlier of (i) the next succeeding interest payment date or (ii) the date Ford
is required to give notice to the NYSE (if the Junior Subordinated Debentures
are then listed thereon) or other applicable self-regulatory organization or to
holders of the Junior Subordinated Debentures of the record or payment date of
such related interest payment.
CERTAIN COVENANTS OF FORD APPLICABLE TO THE JUNIOR SUBORDINATED DEBENTURES
In the Indenture, Ford will covenant that, so long as the Preferred
Securities remain outstanding, Ford will not declare or pay any dividends on, or
redeem, purchase, acquire or make a distribution or liquidation payment with
respect to, any of its common stock or preferred stock or any other securities
similar to the Preferred Securities or the Junior Subordinated Debentures or
make any guarantee payment with respect thereto if at such time (i) Ford shall
be in default with respect to its Guarantee Payments or other payment
obligations under the Preferred Securities Guarantee, (ii) there shall have
occurred any Indenture Event of Default with respect to the Junior Subordinated
Debentures or (iii) Ford shall have given notice of its selection of an
Extension Period as provided in the Indenture and such period, or any extension
thereof, is continuing; provided that Ford will be permitted to pay dividends
(and cash in lieu of fractional shares) upon the conversion, other than at the
option of Ford, of any of its preferred stock, including its Series A Cumulative
Convertible Preferred Stock, in accordance with the terms of such stock. In
addition, so long as the Preferred Securities remain outstanding, Ford has
agreed (i) to remain the sole direct or indirect owner of all of the outstanding
Common Securities and shall not cause or permit the Common Securities to be
transferred except to the extent permitted by the Declaration; provided that any
permitted successor of Ford under the Indenture may succeed to Ford's ownership
of the Common Securities, (ii) to comply fully with all of its obligations and
agreements contained in the Declaration and (iii) not to take any action which
would cause the Trust to cease to be treated as a grantor trust for United
States federal income tax purposes except in connection with a distribution of
Junior Subordinated Debentures.
SUBORDINATION
The Indenture provides that the Securities are subordinate and junior in
right of payment to all Senior Indebtedness of Ford. In the event (a) of any
insolvency or bankruptcy proceedings, or any receivership, liquidation,
reorganization or other similar proceedings in respect of Ford or its property
or any proceeding for voluntary liquidation, dissolution or other winding up of
Ford, or (b) that Securities of any series are declared due and payable before
their expressed maturity because of the occurrence of an Event of Default under
the Indenture (under circumstances other than as set forth in clause (a) above),
then the holders of all Senior Indebtedness shall first be entitled to receive
payment of the full amount due thereon in money, before the holders of any of
the Securities are entitled to receive a payment on account of the principal of,
premium, if any, or interest on the indebtedness evidenced by such Securities.
In the event and during the continuation of any default in payment of any Senior
Indebtedness or if any event of default shall exist and all grace periods with
respect thereto shall have expired under any Senior Indebtedness, as "event of
default" is defined therein
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or in the agreement under which the same is outstanding, no payment of the
principal of, premium, if any, or interest on the Securities shall be made.
The term "Senior Indebtedness" means (a) the principal of and premium, if
any, and interest on all indebtedness of Ford, whether outstanding on the date
of the Indenture or thereafter created, (i) for money borrowed by Ford, (ii) for
money borrowed by, or obligations of, others and either assumed or guaranteed,
directly or indirectly, by Ford, (iii) in respect of letters of credit and
acceptances issued or made by banks, or (iv) constituting purchase money
indebtedness, or indebtedness secured by property included in the property,
plant and equipment accounts of Ford at the time of the acquisition of such
property by Ford, for the payment of which Ford is directly liable, (b) all
deferrals, renewals, extensions and refundings of, and amendments, modifications
and supplements to, any such indebtedness, and (c) all other general unsecured
obligations and liabilities of Ford, including without limitation, trade
payables. As used in the preceding sentence the term "purchase money
indebtedness" means indebtedness evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security interest)
issued or assumed as all or a part of the consideration for the acquisition of
property, whether by purchase, merger, consolidation or otherwise, unless by its
terms such indebtedness is subordinate to other indebtedness of Ford.
The Indenture does not limit the aggregate amount of indebtedness,
including Senior Indebtedness, that may be issued. As of June 30, 1995, Senior
Indebtedness of Ford (on a consolidated basis) aggregated approximately $212.6
billion. There are no terms in the Preferred Securities, the Junior Subordinated
Debentures or the Preferred Securities Guarantee that limit Ford's ability to
incur additional indebtedness, including indebtedness that ranks senior to or
pari passu with the Junior Subordinated Debentures and the Preferred Securities
Guarantee, or the ability of its subsidiaries to incur additional indebtedness.
See "Description of the Preferred Securities Guarantee -- Status of the
Preferred Securities Guarantee".
RESTRICTIONS ON MERGERS AND SALES OF ASSETS
Nothing contained in the Indenture or in the Securities will prevent any
consolidation of Ford with, or merger of Ford with or into, any other
corporation or corporations (whether or not affiliated with Ford), or successive
consolidations or mergers to which Ford or its successor will be a party, or
will prevent any sale, lease or conveyance of the property of Ford, as an
entirety or substantially as an entirety; provided that upon any such
consolidation, merger, sale, lease or conveyance to which Ford is a party and in
which Ford is not the surviving corporation, the due and punctual performance
and observance of all of the covenants and conditions of the Indenture to be
performed or observed by Ford and the due and punctual payment of the principal
of and interest on all of the Securities, according to their tenor, shall be
expressly assumed by supplemental indenture satisfactory in form to the
Indenture Trustee, executed and delivered to the Indenture Trustee, by the
corporation formed by such consolidation, or into which Ford shall have been
merged, or which shall have acquired such property.
EVENTS OF DEFAULT AND NOTICE THEREOF
The Indenture defines an Event of Default with respect to any series of
Securities as being any one of the following events: (a) failure to pay interest
for 30 days after becoming due; (b) failure to pay principal or premium, if any,
for five business days after becoming due at maturity, upon redemption or
otherwise; (c) failure to make a sinking fund payment for five business days
after becoming due; (d) failure to perform any other covenant of Ford (other
than a covenant included in the Indenture solely for the benefit of one or more
series of Securities other than such series or a covenant default the
performance of which would be covered by clause (f) below) for 90 days after
notice; (e) certain events of bankruptcy, insolvency or reorganization of Ford;
and (f) any other Event of Default provided with respect to Securities of such
series. No Event of Default provided with respect to a particular series of
Securities (except as to events described in clauses (d) and (e)) necessarily
constitutes an Event of Default with respect to any other series of Securities.
If an Event of Default in respect of a particular series of Securities
outstanding occurs and is continuing, either the Trustee or the holders of at
least 25% in aggregate principal amount of the Securities outstanding of such
series (and, in the case of any series of Securities held as trust assets of a
Ford Motor Company Capital
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Trust and with respect to which a Security Exchange has not theretofor occurred,
such consent of holders of the Preferred Securities and the Common Securities of
such Ford Motor Company Capital Trust as may be required under the Declaration
of Trust of such Ford Motor Company Capital Trust) may declare the principal
amount (or, if the Securities of such series are Original Issue Discount
Securities (as defined in the Indenture), such portion of the principal amount
as may be specified in the terms of such series) of all of the Securities of
such series to be due and payable immediately. At any time after such a
declaration of acceleration in respect of a particular series of Securities has
been made, but before a judgment or decree for the payment of money due upon
acceleration has been obtained by the Trustee, the holders of a majority in
aggregate principal amount of the Securities outstanding of such series (and, in
the case of any series of Securities held as trust assets of a Ford Motor
Company Capital Trust and with respect to which a Security Exchange has not
theretofor occurred, such consent of holders of the Preferred Securities and the
Common Securities of such Ford Motor Company Capital Trust as may be required
under the Declaration of Trust of such Ford Motor Company Capital Trust) may,
under certain circumstances, waive all defaults and rescind and annul such
declaration and its consequences if all Events of Default in respect of the
Securities of such series, other than the non-payment of principal due solely by
such declaration of acceleration, have been cured or waived as provided in the
Indenture.
The Indenture contains a provision entitling the Trustee, subject to the
duty of the trustee during a default to act with the required standard of care,
to be indemnified by the holders of Securities (treated as one class) (and, in
the case of any series of Securities held as trust assets of a Ford Motor
Company Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such Ford Motor Company Capital Trust as may be
required under the Declaration of Trust of such Ford Motor Company Capital
Trust), before proceeding to exercise any right or power under the Indenture at
the request of such holders. Subject to such provisions in the Indenture for the
indemnification of the Trustee and certain other limitations, the holders of a
majority in principal amount of the outstanding Securities (treated as one
class) (and, in the case of any series of Securities held as trust assets of a
Ford Motor Company Capital Trust and with respect to which a Security Exchange
has not theretofore occurred, such consent of holders of the Preferred
Securities and the Common Securities of such Ford Motor Company Capital Trust as
may be required under the Declaration of Trust of such Ford Motor Company
Capital Trust), may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee.
The Indenture provides that no holder of Securities may institute any
action against Ford under the Indenture (except actions for payment of overdue
principal or interest, provided that a declaration of a valid Extension Period
by Ford shall not constitute a failure to pay interest for this purpose) unless
such holder previously shall have given to the Trustee written notice of default
and continuance thereof and unless the holders of not less than 25% in principal
amount of the Securities of all affected series (treated as one class) (and, in
the case of any series of Securities held as trust assets of a Ford Motor
Company Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such Ford Motor Company Capital Trust as may be
required under the Declaration of Trust of such Ford Motor Company Capital
Trust), then outstanding shall have requested the Trustee to institute such
action and shall have offered the Trustee reasonable indemnity, the Trustee
shall not have instituted such action within 60 days of such request and the
Trustee shall not have received direction inconsistent with such written request
by the holders of a majority in principal amount of the Securities of all
affected series (treated as one class) (and, in the case of any series of
Securities held as trust assets of a Ford Motor Company Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, such consent
of holders of the Preferred Securities and the Common Securities of such Ford
Motor Company Capital Trust as may be required under the Declaration of Trust of
such Ford Motor Company Capital Trust).
The Indenture contains a covenant that Ford will file annually with the
Trustee a certificate that no default existed or a certificate specifying any
default that existed, each as of the end of the fiscal year so ended.
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DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides with respect to each series of Securities that,
except to the extent the terms of such series of Securities provide otherwise,
Ford may elect either (a) to defease and be discharged from any and all
obligations with respect to the Securities of such series (except for the
obligations to register the transfer or exchange of the Securities of such
series, to replace temporary or mutilated, destroyed, lost or stolen Securities
of such series, to maintain an office or agency in respect of the Securities of
such series and to hold moneys for payment in trust) ("legal defeasance") or (b)
to be released from its obligations with respect to the Securities of such
series (except for the obligations set forth as exceptions in the preceding
clause (a) and except for the obligations to pay the principal of and interest,
if any, on the Securities, to compensate and indemnify the Trustee, to appoint a
successor Trustee, to repay certain moneys held by the Paying Agent and to
return certain unclaimed moneys held by the Trustee and Paying Agent) ("covenant
defeasance"), upon the deposit with the Trustee (or other qualifying trustee),
in trust for such purpose, of money or, in the case of Securities payable in
U.S. dollars, U.S. Government Obligations (as defined in the Indenture) which
through the payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal of, premium, if
any, and any interest on the Securities of such series, and any mandatory
sinking fund or analogous payments thereon, on the due date thereof. Such a
trust may (except to the extent the terms of the Securities of such series
otherwise provide) only be established, if among other things, Ford has
delivered to the Trustee an opinion of counsel (as specified in the Indenture)
to the effect that the holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such legal defeasance or covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same time as would
have been the case if such legal defeasance or covenant defeasance had not
occurred. Such opinion, in the case of legal defeasance under clause (a) above,
must (except to the extent the terms of the Securities of the relevant series
otherwise provide) refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable Federal income tax law occurring after the
date of the Indenture.
MODIFICATION OF THE INDENTURE
The Indenture provides that Ford and the Trustee may enter into
supplemental indentures without the consent of the holders of Securities to: (a)
secure any Securities, (b) evidence the assumption by a successor corporation of
the obligations of Ford, (c) add covenants for the protection of the holders of
Securities, (d) cure any ambiguity or correct any inconsistency in the
Indenture, (e) establish the forms or terms of Securities of any series, (f)
provide for uncertificated Securities and (g) evidence the acceptance of
appointment by a successor trustee.
The Indenture also contains provisions permitting Ford and the Trustee,
with the consent of the holders of not less than a majority in principal amount
of all Securities then outstanding and affected (treated as one class) (and, in
the case of any series of Securities held as trust assets of a Ford Motor
Company Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such Ford Motor Company Capital Trust as may be
required under the Declaration of Trust of such Ford Motor Company Capital
Trust), to add any provisions to, or change in any manner or eliminate any of
the provisions of, the Indenture or modify in any manner the rights of the
holders of the Securities of each series so affected; provided that Ford and the
Trustee may not, without the consent of the holder of each outstanding Security
affected thereby, (a) extend the stated maturity of the principal of any
Security, or reduce the principal amount thereof or reduce the rate or extend
the time of payment of interest thereon (except that a declaration of a valid
Extension Period by Ford shall not constitute an extension of time of payment of
interest for this purpose), or reduce any amount payable on the redemption
thereof or change the currency in which the principal thereof (including any
amount in respect of original issue discount), premium, if any, or any interest
thereon is payable or reduce the amount of any original issue discount security
payable upon acceleration or provable in bankruptcy or alter certain provisions
of the Indenture relating to the Securities issued thereunder not denominated in
U.S. dollars or impair the right to institute suit for the enforcement of any
payment on any Security when due or (b) reduce the
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aforesaid percentage in principal amount of Securities of any series, the
consent of the holders of which is
required for any such modification.
CONCERNING THE INDENTURE TRUSTEE
Ford and its subsidiaries maintain ordinary banking relationships with The
Bank of New York and its affiliates and a number of other banks.
BOOK-ENTRY AND SETTLEMENT
If any Junior Subordinated Debentures are distributed to holders of
Preferred Securities (see "Description of the Preferred Securities"), such
Junior Subordinated Debentures will be issued in fully registered form. In such
event, investors may elect to hold their Junior Subordinated Debentures directly
or, subject to the rules and procedures of a Depository Institution, hold
interests in a global certificate registered in the name of a Depository
Institution or its nominee.
For a description of a Depository Institution and a Depository
Institution's book-entry system, see "Description of the Preferred Securities --
Book-Entry; Delivery and Form". As of the date of this Prospectus, the
description herein of a Depository Institution's book-entry system and
Depository Institution's practices as they relate to purchases, transfers,
notices and payments with respect to the Preferred Securities apply in all
material respects to any Junior Subordinated Debentures registered in the name
of and held by a Depository Institution or its nominee.
DESCRIPTION OF THE SERIES B PREFERRED AND DEPOSITARY SHARES
The summary of the terms of the Series B Preferred and the Depositary
Shares set forth below does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the provisions of Ford's Certificate
of Incorporation and the Certificate of Designation for the Series B Preferred
and the Deposit Agreement, copies of which may be obtained from Ford upon
request.
GENERAL
The Series B Preferred consists of 22,800 shares. The Series B Preferred is
not convertible into, or exchangeable for, shares of any other class or series
of stock of Ford. The Series B Preferred, with respect to dividend rights and
rights upon liquidation, dissolution or winding up, ranks (i) senior to the
common stock of Ford and all other securities junior to the Series B Preferred
("Junior Securities"), (ii) on a parity with the outstanding preferred stock of
Ford and all other securities on a parity with the Series B Preferred ("Parity
Securities") and (iii) junior to all securities senior to the Series B
Preferred.
Each Depositary Share represents ownership of 1/2,000 of a share of Series
B Preferred. Subject to the terms of the deposit agreement among Ford, the
Depositary and holders of Depositary Shares, each holder of a Depositary Share
is entitled to all the rights and preferences of 1/2,000 of a share of Series B
Preferred (including dividend, voting, redemption and liquidation rights and
preferences). The Depositary is Chemical Bank, and its principal office is
currently located at 450 West 33rd Street, New York, New York 10001.
DIVIDENDS
Holders of shares of Series B Preferred are entitled to receive, when and
as declared by the Board of Directors out of funds of Ford legally available for
payment, cumulative cash dividends at the rate per annum of 8.25% per share on
the liquidation preference thereof or $2.0625 per 1/2,000 share of Series B
Preferred. Dividends on the Series B Preferred are payable quarterly on the
first business day of March, June, September and December of each year at such
annual rate. Each such dividend is payable to holders of record as they appear
on the stock records of Ford at the close of business on such record dates, not
exceeding 60 days preceding the payment dates thereof, as shall be fixed by the
Board of Directors of Ford. Dividends are cumulative, whether or not in any
dividend period or periods there shall be funds of Ford legally available for
the payment of such dividends. Accumulations of dividends on shares of Series B
Preferred shall not bear
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interest. Dividends payable on the Series B Preferred for any period greater or
less than a full dividend period shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. Dividends payable on the Series B
Preferred for each full dividend period are computed by dividing the annual
dividend rate by four.
All dividends declared on the Series B Preferred for any dividend period
and on any class or series of stock of Ford ranking on a parity with the Series
B Preferred as to dividends (including Ford's Series A Cumulative Convertible
Preferred Stock) shall be declared pro rata so that the amounts of dividends per
share declared for such period on the Series B Preferred and on such other class
or series of stock ranking on a parity with the Series B Preferred as to
dividends that were outstanding during such period shall in all cases bear to
each other the same ratio that the accrued dividends per share on the shares of
the Series B Preferred and such other stock bear to each other.
Ford shall not (i) declare or pay any dividend or other distribution with
respect to any junior stock of Ford or (ii) redeem or set apart funds for the
purchase or redemption of any junior stock through a sinking fund or otherwise,
unless (A) all accrued and unpaid dividends with respect to the Series B
Preferred and any other stock ranking on a parity with the Series B Preferred as
to dividends or upon liquidation ("Parity Stock") at the time such dividends are
payable have been paid or funds have been set apart for payment of such
dividends and (B) sufficient funds have been set apart for the payment of the
dividend for the current dividend period with respect to the Series B Preferred
and any Parity Stock.
As used herein, (i) the term "dividend" does not include dividends payable
solely in shares of junior stock on junior stock, or options, warrants or rights
to holders of junior stock to subscribe for or purchase any junior stock, and
(ii) the term "junior stock" means the Common Stock, the Class B Stock at Ford
and any other class of capital stock of Ford now or hereafter issued and
outstanding that ranks junior as to dividends and upon liquidation to the Series
B Preferred.
Payment of dividends on Series B Preferred are and may be further
restricted by loan agreements, indentures or other transactions entered into by
Ford.
REDEMPTION
Shares of Series B Preferred will not be redeemable prior to December 1,
2002. Subject to the conditions described below, the shares of Series B
Preferred will be redeemable at the option of Ford, in whole or in part, at any
time or from time to time, out of funds legally available therefor, on and after
December 1, 2002, on not less than 10 nor more than 60 days' notice by mail at a
redemption price of $25.00 per 1/2,000 share of Series B Preferred, plus in each
case an amount equal to accrued and unpaid dividends, if any, to the redemption
date, whether or not earned or declared. If fewer than all of the shares of
Series B Preferred are to be redeemed, the shares to be redeemed shall be
selected by lot or pro rata or in some other equitable manner determined by
Ford.
No shares of Series B Preferred may be redeemed unless within the two-year
period ending on the relevant redemption date Ford shall have issued sufficient
shares of Common Stock to result in receipt by Ford of net proceeds from such
issuances of an aggregate amount at least equal to the aggregate liquidation
preference of the shares of Series B Preferred proposed to be redeemed.
In the event that full cumulative dividends on the Series B Preferred and
any other series of stock ranking, as to dividends, on a parity with the Series
B Preferred have not been paid or declared and set apart for payment, the Series
B Preferred may not be redeemed in part and Ford may not purchase or acquire
shares of Series B Preferred or such other stock otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of shares of
Series B Preferred and such other stock.
On and after the date fixed for redemption, provided that the redemption
price (including any accrued and unpaid dividends to the date fixed for
redemption) has been duly paid or provided for, dividends shall cease to accrue
on the Series B Preferred called for redemption, such shares shall no longer be
deemed to be outstanding and all rights of the holders of such shares as
stockholders of Ford shall cease except the right to receive the moneys payable
upon such redemption, without interest from the date of notice of redemption,
upon surrender of the certificates evidencing such shares.
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LIQUIDATION PREFERENCE
The amount which the holders of shares of Series B Preferred shall be
entitled to receive in the event of any liquidation, dissolution or winding up
of Ford, whether voluntary or involuntary, shall be $25.00 per 1/2,000 share of
Series B Preferred (the "liquidation preference") plus an amount per share of
Series B Preferred equal to all dividends (whether or not declared), accrued,
accumulated and unpaid thereon to the date of final distribution to such
holders, and no more.
In the event of any liquidation, dissolution or winding up of Ford, whether
voluntary or involuntary, before any payment or distribution of the assets of
Ford (whether capital or surplus) shall be made to or set apart for the holders
of junior stock, upon liquidation, dissolution or winding up, the holders of the
shares of Series B Preferred shall be entitled to receive the liquidation
preference with respect thereto plus an amount equal to all dividends (whether
or not earned or declared) accrued and accumulated and unpaid thereon to the
date of final distribution to such holders; but such holders shall not be
entitled to any further payment. If, upon any liquidation, dissolution or
winding up of Ford, the assets of Ford, or proceeds thereof, distributable among
the holders of the shares of Series B Preferred shall be insufficient to pay in
full the preferential amount aforesaid and the liquidation preference with
respect to any other shares of stock ranking, as to liquidation, dissolution or
winding up, on a parity with the Series B Preferred, then such assets, or the
proceeds thereof, shall be distributed among the holders of shares of Series B
Preferred and any such other stock ratably in accordance with the respective
amounts which would be payable on such shares of Series B Preferred and any such
other stock if all amounts payable thereon were paid in full. Neither a
consolidation or merger of Ford with another corporation nor a sale or transfer
of all or substantially all of Ford's assets nor a statutory share exchange will
be considered a liquidation, dissolution or winding up, voluntary or
involuntary, of Ford.
VOTING RIGHTS
Except as indicated below, or except as otherwise from time to time
required by applicable law, the holders of shares of Series B Preferred will
have no voting rights.
During any period in which dividends on the Series B Preferred are
cumulatively in arrears for such number of dividend periods which shall in the
aggregate contain not less than 540 days, the number of directors of Ford will
be increased by two and the holders of shares of Series B Preferred, voting
together as a class with the holders of any other class or series of Parity
Stock upon which the same voting rights as those of the Series B Preferred have
been conferred and are exercisable, will have the right to elect two additional
directors to Ford's Board of Directors at Ford's next annual meeting of
stockholders and at each subsequent annual meeting until all such dividends on
the Series B Preferred have been paid in full.
The approval of two-thirds of the outstanding shares of Series B Preferred
shall be required in order to amend the Certificate of Incorporation to affect
materially and adversely the rights, preferences or voting powers of the holders
of the Series B Preferred or to authorize, create, issue or increase the
authorized or issued amount of, any class of stock having rights senior or
superior with respect to dividends and upon liquidation to the Series B
Preferred; provided, however, that any increase in the amount of authorized
preferred stock or the creation and issuance of other series of preferred stock,
or any increase in the amount of authorized shares of such series or of any
other series of preferred stock, in each case ranking on a parity with or junior
to the Series B Preferred with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such rights, preferences or voting
powers.
TRANSFER AGENT AND REGISTRAR
Chemical Bank, New York, is the transfer agent and registrar for the Series
B Preferred.
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RELATIONSHIP BETWEEN THE PREFERRED SECURITIES, THE JUNIOR SUBORDINATED
DEBENTURES AND THE PREFERRED SECURITIES GUARANTEE
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debentures, such payments will be sufficient to cover
distributions and other payments due on the Preferred Securities primarily
because (i) the aggregate principal amount of Junior Subordinated Debentures
held as trust assets will be equal to the sum of the aggregate stated
liquidation amount of the Preferred Securities and the proceeds received by the
Trust upon issuance of the Common Securities to Ford; (ii) the interest rate and
interest and other payment dates on the Junior Subordinated Debentures will
match the distribution rate and distribution and other payment dates for the
Preferred Securities; (iii) the Declaration provides that Ford shall pay for all
debts and obligations (other than with respect to the Trust Securities) and all
costs and expenses of the Trust, including any taxes and all costs and expenses
with respect thereto, to which the Trust may become subject, except for United
States withholding taxes; and (iv) the Declaration further provides that the
Trustees shall not cause or permit the Trust, among other things, to engage in
any activity that is not consistent with the limited purposes of the Trust.
Payments of distributions and other payments due on the Preferred
Securities are guaranteed by Ford on a subordinated basis as and to the extent
set forth under "Description of the Preferred Securities Guarantee". If Ford
does not make interest or other payments on the Junior Subordinated Debentures,
the Trust will not make distributions or other payments on the Preferred
Securities. Under the Declaration, if and to the extent Ford does make interest
or other payments on the Junior Subordinated Debentures, the Institutional
Trustee is obligated to make distributions or other payments on the Preferred
Securities. The Preferred Securities Guarantee is a full and unconditional
guarantee from the time of issuance of the Preferred Securities, but the
Preferred Securities Guarantee covers distributions and other payments on the
Preferred Securities only if and to the extent that Ford has made a payment of
interest or principal on the Junior Subordinated Debentures deposited in the
Trust as trust assets.
The Institutional Trustee will have the power to exercise all rights,
powers and privileges under the Indenture with respect to the Junior
Subordinated Debentures, including its rights as the holder of the Junior
Subordinated Debentures to enforce Ford's obligations under the Junior
Subordinated Debentures upon the occurrence of an Indenture Event of Default,
and will also have the right to enforce the Preferred Securities Guarantee on
behalf of the holders of the Preferred Securities. In addition, the holders of
at least a majority in liquidation amount of the Preferred Securities will have
the right to direct the Institutional Trustee with respect to certain matters
under the Declaration and the Preferred Securities Guarantee. If the
Institutional Trustee fails to enforce its rights under the Indenture or fails
to enforce the Preferred Securities Guarantee, any holder of Preferred
Securities may institute a legal proceeding against Ford to enforce such rights
or the Preferred Securities Guarantee, as the case may be. See "Description of
the Preferred Securities" and "Description of the Preferred Securities
Guarantee".
Ford and the Trust believe that for accounting purposes, the Preferred
Securities Guarantee, when taken together with Ford's obligations under the
Junior Subordinated Debentures and its obligation to pay costs, expenses and
certain liabilities of the Trust pursuant to the Declaration, constitutes a full
and unconditional guarantee of amounts due on the Preferred Securities.
If a Special Event shall occur and be continuing, the Trust shall be
dissolved unless the Junior Subordinated Debentures are redeemed in the limited
circumstances described below, with the result that Junior Subordinated
Debentures held by the Trust having an aggregate principal amount equal to the
aggregate stated liquidation amount of the Preferred Securities and Common
Securities will be distributed on a Pro Rata Basis in exchange for the
outstanding Preferred Securities and Common Securities, subject in the case of a
Tax Event to Ford's right in certain circumstances to redeem Junior Subordinated
Debentures as described under "Description of the Preferred Securities --
Special Event Redemption or Distribution". The Preferred Securities represent
preferred undivided beneficial interests in the assets of the Trust, a statutory
business trust which exists for the purpose of (a) issuing (i) its Preferred
Securities in exchange for Depositary Shares validly tendered in the Offer and
delivering such Depositary Shares to Ford in consideration for the deposit by
Ford of Junior Subordinated Debentures in the Trust as trust assets, and (ii)
its Common
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Securities to Ford in exchange for cash and investing the proceeds thereof in an
equivalent amount of Junior Subordinated Debentures and (b) engaging in such
other activities as are necessary or incidental thereto.
Upon any voluntary or involuntary dissolution, winding-up or termination of
the Trust, the holders of Preferred Securities will be entitled to receive the
Liquidation Distribution in cash or Junior Subordinated Debentures and will be
entitled to the benefits of the Preferred Securities Guarantee with respect to
any such distribution. See "Description of the Preferred Securities --
Liquidation Distribution Upon Dissolution". Upon any voluntary or involuntary
liquidation or bankruptcy of Ford, the holders of Junior Subordinated Debentures
would be subordinated creditors of Ford, subordinated in right of payment to all
Senior Indebtedness, but entitled to receive payment in full of principal,
premium, if any, and interest, before any stockholders of Ford receive payments
or distributions.
A default or event of default under any Senior Indebtedness would not
constitute a default or event of default under the Junior Subordinated
Debentures. However, in the event of payment defaults under, or acceleration of,
Senior Indebtedness, the subordination provisions of the Junior Subordinated
Debentures provide that no payments may be made in respect of the Junior
Subordinated Debentures. Failure to make required payments on the Junior
Subordinated Debentures would constitute an event of default under the
Indenture.
TAXATION
In the opinion of Dennis E. Ross, Chief Tax Officer of Ford and tax counsel
to the Trust, the following are the material United States federal income tax
consequences of the issuance of Preferred Securities in exchange for the
Depositary Shares pursuant to the Offer, and of the ownership and disposition of
Preferred Securities. Unless otherwise stated, this summary deals only with
Preferred Securities held as capital assets by holders who acquire the Preferred
Securities pursuant to the Offer ("Initial Holders"). It does not deal with
special classes of holders, such as dealers in securities or currencies, life
insurance companies, persons holding Preferred Securities as a hedge against or
which are hedged against currency risks or as part of a straddle, or persons
whose functional currency is not the United States dollar. This summary is based
on the Internal Revenue Code of 1986, as amended (the "Code"), Treasury
Regulations thereunder and administrative and judicial interpretations thereof,
as of the date hereof, all of which are subject to change (possibly on a
retroactive basis).
ALL HOLDERS OF DEPOSITARY SHARES ARE ADVISED TO CONSULT THEIR TAX ADVISORS
AS TO THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OF
DEPOSITARY SHARES FOR PREFERRED SECURITIES AND OF THE OWNERSHIP AND DISPOSITION
OF PREFERRED SECURITIES IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, AS WELL AS
THE EFFECT OF ANY STATE, LOCAL OR OTHER TAX LAWS.
EXCHANGE OF DEPOSITARY SHARES FOR PREFERRED SECURITIES
The exchange of Depositary Shares for Preferred Securities pursuant to the
Offer will be a taxable transaction. In the case of an Initial Holder who
actually or constructively owns solely Depositary Shares, or not more than one
percent of such stock and not more than one percent of any other class of Ford
stock, gain or loss will be recognized in an amount equal to the difference
between the fair market value on the Expiration Date of the Preferred Securities
(representing an undivided interest in the Junior Subordinated Debentures)
received in the exchange and the exchanging Holder's tax basis in the Depositary
Shares exchanged therefor and will be long-term capital gain or loss if the
Depositary Share has been held for more than one year as of such date. A
holder's aggregate tax basis in his or her pro rata share of the underlying
Junior Subordinated Debentures will be equal to his pro rata share of their
"issue price" on the Expiration Date as defined below.
Holders of Depositary Shares who actually or constructively own more than
one percent of any other class of Ford stock are advised to consult their tax
advisors as to the income tax consequences of exchanging Depositary Shares.
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CLASSIFICATION OF THE TRUST
In connection with the issuance of the Preferred Securities, Dennis E.
Ross, Chief Tax Officer of Ford and tax counsel to the Trust, will render his
opinion generally to the effect that, under then current law and assuming full
compliance with the terms of the Declaration, the Trust will be classified for
United States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation. Accordingly, each Securityholder will be
considered the owner of a pro rata portion of the Junior Subordinated Debentures
held by the Trust and will be required to include in gross income his or her pro
rata share of the income accrued on the Junior Subordinated Debentures.
ACCRUAL OF ORIGINAL ISSUE DISCOUNT AND PREMIUM
The Junior Subordinated Debentures will be considered to have been issued
with "original issue discount" and each Securityholder, including a taxpayer who
otherwise uses the cash method of accounting, will be required to include his or
her pro rata share of original issue discount on the Junior Subordinated
Debentures in income as it accrues, in accordance with a constant yield method
based on a compounding of interest, before the receipt of cash distributions on
the Preferred Securities. Generally, all of a Securityholder's taxable interest
income with respect to the Junior Subordinated Debentures will be accounted for
as "original issue discount" and actual distributions of stated interest will
not be separately reported as taxable income. So long as the interest payment
period is not extended, cash distributions received by an Initial Holder for any
quarterly interest period (assuming no disposition prior to the record date for
such distribution) will equal or exceed the sum of the daily accruals of income
for such quarterly interest period, unless the issue price of the Junior
Subordinated Debentures (as defined below) is less than $25.
The total amount of "original issue discount" on the Junior Subordinated
Debentures will equal the difference between the "issue price" of the Junior
Subordinated Debentures and their "stated redemption price at maturity." Because
Ford has the right to extend the interest payment period of the Junior
Subordinated Debentures, all of the stated interest payments on the Junior
Subordinated Debentures will be includible in determining their "stated
redemption price at maturity." The "issue price" of each $25 principal amount of
the Junior Subordinated Debentures will be equal to the fair market value of a
Preferred Security on the Expiration Date, which may be more or less than $25,
with the result that the total amount of original issue discount on the Junior
Subordinated Debentures may be more or less than the amount of stated interest
payable with respect thereto. The issue price of each $25 principal amount of
the Junior Subordinated Debentures may be reduced by the Pre-Issuance Accrued
Distribution. If a Securityholder computes the issue price of his or her pro
rata share of the Junior Subordinated Debentures in this manner, then the
payment of such amount will be treated as a return of capital rather than as an
interest payment. Ford and the Trust may elect to compute the issue price of the
Junior Subordinated Debentures in this manner and, if so, will report the
payment of such amount on Form 1099-B.
A Securityholder's initial tax basis for his or her pro rata share of the
Junior Subordinated Debentures will be equal to the fair market value on the
Expiration Date of the Preferred Securities held by such Securityholder, and
will be increased by original issue discount accrued with respect thereto, and
reduced by the amount of cash distributions (including the amount of
Pre-issuance Accrued Interest) paid to such Securityholder. No portion of the
amounts received on the Preferred Securities will be eligible for the dividends
received deduction for corporate holders.
POTENTIAL EXTENSION OF PAYMENT PERIOD ON THE JUNIOR SUBORDINATED DEBENTURES
Securityholders will continue to accrue original issue discount with
respect to their pro rata share of the Junior Subordinated Debentures during an
extended interest payment period, and any holders who dispose of Preferred
Securities prior to the record date for the payment of interest following such
extended interest payment period will not receive from the Trust any cash
related thereto.
66
<PAGE> 73
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES TO HOLDERS OF PREFERRED
SECURITIES
Under current law, a distribution by the Trust of the Junior Subordinated
Debentures as described under the caption "Description of the Preferred
Securities -- Special Event Redemption or Distribution" will be non-taxable and
will result in the Securityholder receiving directly his or her pro rata share
of the Junior Subordinated Debentures previously held indirectly through the
Trust, with a holding period and tax basis equal to the holding period and
adjusted tax basis such Securityholder was considered to have had in his or her
pro rata share of the underlying Junior Subordinated Debentures prior to such
distribution.
MARKET DISCOUNT AND BOND PREMIUM
Securityholders other than Initial Holders may be considered to have
acquired their pro rata interest in the Junior Subordinated Debentures with
market discount, acquisition premium or amortizable bond premium. Such holders
are advised to consult their tax advisors as to the income tax consequences of
the acquisition, ownership and disposition of the Preferred Securities.
DISPOSITION OF THE PREFERRED SECURITIES
Upon a sale, exchange or other disposition of the Preferred Securities
(including a distribution of cash in redemption of a Securityholder's Preferred
Securities upon redemption or repayment of the underlying Junior Subordinated
Debentures, but excluding the distribution of Junior Subordinated Debentures), a
Securityholder will be considered to have disposed of all or part of his or her
pro rata share of the Junior Subordinated Debentures, and will recognize gain or
loss equal to the difference between the amount realized and the
Securityholder's adjusted tax basis in his or her pro rata share of the
underlying Junior Subordinated Debentures deemed disposed of. Gain or loss will
be capital gain or loss (except to the extent of any accrued market discount
with respect to such Securityholder's pro rata share of the Junior Subordinated
Debentures not previously included in income). See "-- Market Discount and Bond
Premium" above. Such gain or loss will be long-term capital gain or loss if the
Preferred Securities have been held for more than one year.
The Preferred Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying Junior
Subordinated Debentures. In such event, a Securityholder who disposes of
Preferred Securities and does not receive a payment of interest from the Trust
for the period in which the disposition occurs will nevertheless be required to
include accrued but unpaid interest on the Junior Subordinated Debentures
through the date of disposition in income as ordinary income, and to add such
amount to his or her adjusted tax basis in his or her pro rata share of the
underlying Junior Subordinated Debentures deemed disposed of. Accordingly, such
a Securityholder will recognize a capital loss to the extent the selling price
(which may not fully reflect the value of accrued but unpaid interest) is less
than the Securityholder's adjusted tax basis (which will include accrued but
unpaid interest). Subject to certain limited exceptions, capital losses cannot
be applied to offset ordinary income for United States income tax purposes.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is, as to the United
States, a foreign corporation, a non-resident alien individual, a foreign
partnership or a non-resident fiduciary of a foreign estate or trust.
Under present United States federal income tax law:
(i) payments by the Trust or any of its paying agents to any holder of
a Preferred Security who or which is a United States Alien Holder will not
be subject to United States federal withholding tax, provided that (a) the
beneficial owner of the Preferred Security does not actually or
constructively own 10% or more of the total combined voting power of all
classes of stock of Ford entitled to vote, (b) the beneficial owner of the
Preferred Security is not a controlled foreign corporation that is related
to Ford through stock ownership, and (c) either (A) the beneficial owner of
the Preferred Security certifies to the Trust or its agent, under penalties
of perjury, that it is not a United States holder and provides its name and
address or (B) a securities clearing organization, bank or other financial
institution that holds
67
<PAGE> 74
customers' securities in the ordinary course of its trade or business (a
"Financial Institution") and holds the Preferred Security certifies to the
Trust or its agent under penalties of perjury that such statement has been
received from the beneficial owner by it or by a Financial Institution
between it and the beneficial owner and furnishes the Trust or its agent
with a copy thereof;
(ii) a United States Alien Holder of a Preferred Security will not be
subject to United States federal withholding tax on any gain realized upon
the sale or other disposition of a Preferred Security; and
(iii) any gain realized by a United States Alien Holder upon the
exchange of Depositary Shares for Preferred Securities will not be subject
to United States federal withholding tax.
INFORMATION REPORTING TO HOLDERS
The Trust will report the original issue discount that accrued during the
year with respect to the Junior Subordinated Debentures, and any gross proceeds
received by the Trust from the retirement or redemption of the Junior
Subordinated Debentures, annually to the holders of record of the Preferred
Securities and the Internal Revenue Service. The Trust currently intends to
deliver such reports to holders of record prior to January 31 following each
calendar year. It is anticipated that persons who hold Preferred Securities as
nominees for beneficial holders will report the required tax information to
beneficial holders on Form 1099.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of Preferred Securities may be
subject to a "backup" withholding tax of 31% unless the holder complies with
certain identification requirements. Any withheld amounts will generally be
allowed as a credit against the holder's federal income tax, provided the
required information is timely filed with the Internal Revenue Service.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon for the Trust by Morris, Nichols, Arsht &
Tunnell, special Delaware counsel to the Trust. The validity of the Preferred
Securities Guarantee and the Junior Subordinated Debentures, and certain legal
matters in connection with the Preferred Securities, the Preferred Securities
Guarantee and the Junior Subordinated Debentures, will be passed upon for the
Trust and Ford by J.M. Rintamaki, Secretary and an Assistant General Counsel of
Ford. Any tax matters with respect to the Preferred Securities, the Junior
Subordinated Debentures, and the Preferred Securities Guarantee will be passed
on for Ford and the Trust by Dennis E. Ross, Chief Tax Officer of Ford and tax
counsel to the Trust. Mr. Rintamaki and Mr. Ross are full-time employees of Ford
and own, and hold options to purchase, shares of Common Stock of Ford, and Mr.
Rintamaki owns depositary shares, each representing 1/1,000 of a share of Series
A Cumulative Convertible Preferred Stock of Ford. Certain legal matters in
connection with the Preferred Securities will be passed upon for the Dealer
Managers by Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022.
Shearman & Sterling act as counsel to the Compensation and Option Committee and
the Audit Committee of the Board of Directors of Ford and have in the past
provided, and may continue to provide, legal services to Ford and its
subsidiaries.
EXPERTS
The financial statements of Ford which are incorporated in this Prospectus
by reference to Ford's 1994 10-K Report have been audited by Coopers & Lybrand
L.L.P., independent certified public accountants, to the extent indicated in
their report therein, and have been so incorporated in reliance on the report of
that firm given on their authority as experts in accounting and auditing.
With respect to the unaudited interim financial information of Ford for the
periods ending March 31, 1995 and June 30, 1995, incorporated in this Prospectus
by reference to Ford's 1995 10-Q Reports, Coopers & Lybrand L.L.P. have reported
that they have applied limited procedures in accordance with professional
68
<PAGE> 75
standards for a review of such information. However, their reports included in
Ford's 1995 10-Q Reports state that they did not audit and they do not express
an opinion on that interim financial information. Accordingly, the degree of
reliance on their reports on such information should be restricted in light of
the limited nature of the review procedures applied. The accountants are not
subject to the liability provisions of Section 11 of the Securities Act for
their reports on the unaudited interim financial information because such
reports do not constitute "reports" or a "part" of the registration statement
prepared or certified by the accountants within the meaning of Sections 7 and 11
of the Securities Act.
ERISA CONSIDERATIONS
Generally, employee benefit plans that are subject to the Employee
Retirement Income Security Act of 1974 ("ERISA"), or Section 4975 of the Code
("Plans"), may purchase Preferred Securities, subject to the investing
fiduciary's determination that the investment in Preferred Securities satisfies
ERISA's fiduciary standards and other requirements applicable to investments by
the Plan.
In any case, Ford and/or any of its affiliates may be considered a "party
in interest" (within the meaning of ERISA) or a "disqualified person" (within
the meaning of Section 4975 of the Code) with respect to certain plans
(generally, Plans maintained or sponsored by, or contributed to by, any such
persons). The acquisition and ownership of Preferred Securities by a Plan (or by
an individual retirement arrangement or other Plans described in Section
4975(e)(i) of the Code) with respect to which Ford or any of its affiliates is
considered a party in interest or a disqualified person, may constitute or
result in a prohibited transaction under ERISA or Section 4975 of the Code,
unless such Preferred Securities are acquired pursuant to and in accordance with
an applicable exemption.
As a result, Plans with respect to which Ford or any of its affiliates is a
party in interest or a disqualified person should not acquire Preferred
Securities. Any other Plans or other entities whose assets include Plan assets
subject to ERISA proposing to acquire Preferred Securities should consult with
their own ERISA counsel.
69
<PAGE> 76
Facsimile copies of the Letter of Transmittal will be accepted. Letters of
Transmittal, certificates representing Depositary Shares and any other required
documents should be sent by each Holder of Depositary Shares or his broker,
dealer, commercial bank, trust company or other nominee to the Exchange Agent at
one of the addresses as set forth below:
THE EXCHANGE AGENT IS:
CHEMICAL BANK
C/O CHEMICAL MELLON SHAREHOLDER SERVICES
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand:
Chemical Bank (For Eligible Institutions Only) Chemical Bank
c/o Chemical Mellon Shareholder (201) 296-4293 c/o Chemical Mellon Shareholder
Services Services
Midtown Station Confirm by Telephone: Reorganization Department
P.O. Box 837 (201) 296-4209 120 Broadway, 13th Floor
New York, NY 10018 New York, NY 10271
By Overnight Courier:
Chemical Bank
c/o Chemical Mellon Shareholder Services
Reorganization Department
85 Challenger Road
Ridgefield Park, NJ 07660
</TABLE>
THE INFORMATION AGENT IS:
[GEORGESON & COMPANY LOGO]
Wall Street Plaza
New York, New York 10005
Banks and Brokers Call Collect:
(212) 440-9800
or
All Others Call Toll Free:
(800) 223-2064
Any questions or requests for assistance or additional copies of this
Prospectus, the Letter of Transmittal or for copies of the Notice of Guaranteed
Delivery may be directed to the Information Agent at its telephone number and
location set forth above. You may also contact your broker, dealer, commercial
bank or trust company or other nominee for assistance concerning the Offer.
THE DEALER MANAGERS FOR THE OFFER ARE:
MERRILL LYNCH & CO.
World Financial Center
North Tower -- Seventh Floor
New York, New York 10281
(212) 236-4565 (Collect)
<TABLE>
<S> <C>
DEAN WITTER REYNOLDS INC. A.G. EDWARDS & SONS, INC.
2 World Trade Center 1 North Jefferson
65th Floor St. Louis, Missouri 63103-2205
New York, New York 10048 (800) 640-1705 (Toll-Free)
(800) 488-4490 (Toll-Free)
GOLDMAN, SACHS & CO. LEHMAN BROTHERS
85 Broad Street 3 World Financial Center
New York, New York 10004 New York, New York 10285
(800) 828-3182 (Toll-Free) (800) 438-3242 (Toll-Free)
PAINEWEBBER INCORPORATED SMITH BARNEY INC.
1285 Avenue of the Americas 388 Greenwich Street
New York, New York 10019 New York, New York 10013
(800) 324-0210 (Toll-Free) (800) 813-3754 (Toll-Free)
</TABLE>
<PAGE> 77
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors against expenses (including
attorneys' fees) in connection with the defense or settlement of an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
In accordance with the Delaware Law, the Certificate of Incorporation of
Ford contains a provision to limit the personal liability of the directors of
Ford for violations of their fiduciary duty. This provision eliminates each
director's liability to Ford or its stockholders for monetary damages except (i)
for any breach of the director's duty of loyalty to Ford or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware Law providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions, or (iv) for any
transaction from which a director derived an improper personal benefit. The
effect of this provision is to eliminate the personal liability of directors for
monetary damages for actions involving a breach of their fiduciary duty of care,
including any such actions involving gross negligence.
Section 6 of the form of dealer manager agreement filed as Exhibit 1 to
this Registration Statement provides for indemnification of directors, officers
who sign the Registration Statement and controlling persons of the Registrant by
the dealer managers, and for indemnification of each dealer manager and its
controlling persons by the Registrant, against certain liabilities. Similar
provisions are contained in agreements entered into between the Registrant and
groups of dealer managers or underwriters on past occasions.
The Declaration provides that no Trustee, affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Trustee or any employee or agent of the Trust or its affiliates
(each, an "Indemnified Person") shall be liable, responsible or accountable in
damages or otherwise to any employee or agent of the Trust or its affiliates, or
any officers, directors, shareholders, employees, representatives or agents of
Ford or its affiliations or to any holders of Trust Securities of the Trust for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by the Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or, in
the case of the Institutional Trustee, negligence) or willful misconduct with
respect to such acts or omission. The Declaration also provides that, to the
fullest extent permitted by applicable law, Ford shall indemnify and hold
harmless each Trustee, any affiliate of a Trustee or any officers, directors,
shareholders, members, partners, employees, representatives or agents of the
Trustees, or any employee or agent of the Trust or its affiliates (each, an
"Indemnified Person") from and against any loss, damage or claim incurred by
such Indemnified Person by reason of any act or omission performed or omitted by
such Indemnified Person in good faith on behalf of the Trust and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by the
II-1
<PAGE> 78
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence (or, in the case of the Institutional
Trustee, negligence) or willful misconduct with respect to such acts or
omissions. The Declaration further provides that to the fullest extent permitted
by applicable law, expenses (including legal fees) incurred by an Indemnified
Person in defending any claim, demand, action, suit or proceeding shall, from
time to time, be advanced by Ford prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by Ford of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified
pursuant to the Declaration.
ITEM 21. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT
----------- --------------------------------------------------------------------------------
<S> <C>
1 -- Form of Dealer Manager Agreement
4.1 -- Form of Indenture between Ford and The Bank of New York as Trustee
4.2 -- Form of First Supplemental Indenture to Indenture*
4.3 -- Declaration of Trust of Ford Motor Company Capital Trust I
4.4 -- Certificate of Trust of Ford Motor Company Capital Trust I
4.5 -- Form of Amended and Restated Declaration of Trust of Ford Motor Company Capital
Trust I
4.6 -- Form of Preferred Security (included in Exhibit 4.5 above)
4.7 -- Form of Junior Subordinated Debenture (included in Exhibit 4.2 above)*
4.8 -- Form of Guarantee Agreement with respect to Preferred Securities
5.1 -- Opinion of J. M. Rintamaki, Secretary and Assistant General Counsel of Ford*
5.2 -- Opinion of Morris, Nichols, Arsht & Tunnell*
8 -- Tax Opinion of Dennis E. Ross, Chief Tax Officer of Ford*
12 -- Ford Motor Company Computation of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.*
15 -- Letter of Coopers & Lybrand L.L.P. regarding unaudited interim financial
information.
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Dennis E. Ross (included in Exhibits 5.1 and 8.1 above)
23.3 -- Consent of Morris, Nichols, Arsht & Tunnell (included in Exhibit 5.2 above)
24.1 -- Powers of Attorney for Ford Motor Company
24.2 -- Powers of Attorney for Ford Motor Company, as sponsor, to sign this Registration
Statement on behalf of Ford Motor Company Capital Trust I (included in Exhibit
4.3 above)
25.1 -- Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York as Trustee under the Indenture*
25.2 -- Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York as Institutional Trustee under the Amended and Restated
Declaration of Trust*
25.3 -- Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York as indenture trustee under the Preferred Securities
Guarantee*
99.1 -- Proposed Form of Letter of Transmittal*
99.2 -- Proposed Form of Notice of Guaranteed Delivery*
99.3 -- Proposed Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees*
99.4 -- Proposed Form of Letter to Clients*
99.5 -- Form of Exchange Agent Agreement*
99.6 -- Form of Information Agent Agreement*
99.7 -- Form of Newspaper Announcement*
99.8 -- Proposed Form of Ford Letter to Holders of 8.25% Preferred Stock, Series B*
</TABLE>
-------------------------
* To be filed by amendment.
II-2
<PAGE> 79
ITEM 22. UNDERTAKINGS.
Each of the Registrants hereby undertakes:
(1) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of Ford's Annual Report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrants pursuant to the foregoing
provisions, or otherwise, the Registrants have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of expenses incurred
or paid by a director, officer or controlling person of the Registrants in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrants will, unless in the opinion of
their counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(3) To respond to requests for information that is incorporated by
reference into the Prospectus pursuant to Item 4, 10(b), 11 or 13 of Form
S-4, within one business day of receipt of such request, and to send the
incorporated documents by first-class mail or equally prompt means. This
includes information contained in documents filed subsequent to the
effective date of the Registration Statement through the date responding to
the request.
(4) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the Registration Statement when
it became effective.
II-3
<PAGE> 80
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ford Motor
Company, has duly caused this Registration Statement on Form S-4 to be signed on
its behalf by the undersigned, thereunto duly authorized, in Dearborn, Michigan,
on the 19th day of September, 1995.
FORD MOTOR COMPANY
By /s/ ALEX TROTMAN*
------------------------------------
(Alex Trotman)
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------------------------------- --------------------------------------- -------------------
<C> <S> <C>
ALEX TROTMAN* Director and Chairman of the Board of
--------------------------------- Directors, President and Chief
(Alex Trotman) Executive Officer (Principal Executive
Officer)
COLBY H. CHANDLER* Director
---------------------------------
(Colby H. Chandler)
MICHAEL D. DINGMAN* Director
---------------------------------
(Michael D. Dingman)
EDSEL B. FORD II* Director, Vice President--Ford and
--------------------------------- President and Chief Operating Officer,
(Edsel B. Ford II) Ford Motor Credit Company
WILLIAM CLAY FORD* Director
---------------------------------
(William Clay Ford)
WILLIAM CLAY FORD, JR.* Director and Chairman of the Finance
--------------------------------- Committee September 19, 1995
(William Clay Ford, Jr.)
Director
---------------------------------
(Roberto C. Goizueta)
IRVINE O. HOCKADAY, JR.* Director
---------------------------------
(Irvine O. Hockaday, Jr.)
MARIE-JOSEE KRAVIS* Director
---------------------------------
(Marie-Josee Kravis)
DREW LEWIS* Director
---------------------------------
(Drew Lewis)
ELLEN R. MARRAM* Director
---------------------------------
(Ellen R. Marram)
</TABLE>
II-4
<PAGE> 81
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------------------------------- --------------------------------------- -------------------
<C> <S> <C>
KENNETH H. OLSEN* Director
---------------------------------
(Kenneth H. Olsen)
CARL E. REICHARDT* Director
---------------------------------
(Carl E. Reichardt)
LOUIS R. ROSS* Director and Vice Chairman and Chief
--------------------------------- Technical Officer
(Louis R. Ross)
September 19, 1995
CLIFTON R. WHARTON, JR.* Director
---------------------------------
(Clifton R. Wharton, Jr.)
JOHN M. DEVINE* Group Vice President and Chief
--------------------------------- Financial Officer (Principal Financial
(John M. Devine) Officer)
DANIEL R. COULSON* Director of Accounting (Principal
--------------------------------- Accounting Officer)
(Daniel R. Coulson)
* By /s/ PETER SHERRY, JR.
--------------------------------
(Peter Sherry, Jr.,
Attorney-in-Fact)
</TABLE>
II-5
<PAGE> 82
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Ford Motor Company Capital Trust I, has duly caused this Registration Statement
on Form S-4 to be signed on its behalf by the undersigned, thereunto duly
authorized, in Dearborn, Michigan, on this 19th day of September, 1995.
FORD MOTOR COMPANY CAPITAL TRUST I
By: Ford Motor Company, as Sponsor
By: /s/ J.M. RINTAMAKI
------------------------------------
Name: J.M. Rintamaki
Title: Secretary
II-6
<PAGE> 83
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DOCUMENT PAGE
------- -------------------------------------------------------------------------- ----
<C> <C> <S> <C>
1 -- Form of Dealer Manager Agreement
4.1 -- Form of Indenture between Ford and The Bank of New York as Trustee
4.2 -- Form of First Supplemental Indenture to Indenture*
4.3 -- Declaration of Trust of Ford Motor Company Capital Trust I
4.4 -- Certificate of Trust of Ford Motor Company Capital Trust I
4.5 -- Form of Amended and Restated Declaration of Trust of Ford Motor Company
Capital Trust I
4.6 -- Form of Preferred Security (included in Exhibit 4.5 above)
4.7 -- Form of Junior Subordinated Debenture (included in Exhibit 4.2 above)*
4.8 -- Form of Guarantee Agreement with respect to Preferred Securities
5.1 -- Opinion of J.M. Rintamaki, Secretary and Assistant General Counsel of
Ford*
5.2 -- Opinion of Morris, Nichols, Arsht & Tunnell*
8 -- Tax Opinion of Dennis E. Ross, Chief Tax Officer of Ford*
12 -- Ford Motor Company Computation of Earnings to Combined Fixed Charges and
Preferred Stock Dividends*
15 -- Letter of Coopers & Lybrand L.L.P. regarding unaudited interim financial
information
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Dennis E. Ross (included in Exhibits 5.1 and 8.1 above)*
23.4 -- Consent of Morris, Nichols, Arsht & Tunnell (included in Exhibit 5.2
above)*
24.1 -- Powers of Attorney for Ford Motor Company
24.2 -- Powers of Attorney for Ford Motor Company, as sponsor, to sign this
Registration Statement on behalf of Ford Motor Company Capital Trust I
(included in Exhibit 4.3 above)
25.1 -- Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The Bank of New York as Trustee under the Indenture*
25.2 -- Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The Bank of New York as Institutional Trustee under the
Amended and Restated Declaration of Trust*
25.3 -- Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The Bank of New York as indenture trustee under the Preferred
Securities Guarantee*
99.1 -- Proposed Form of Letter of Transmittal*
99.2 -- Proposed Form of Notice of Guaranteed Delivery*
99.3 -- Proposed Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees*
99.4 -- Proposed Form of Letter to Clients*
99.5 -- Form of Exchange Agent Agreement*
99.6 -- Form of Information Agent Agreement*
99.7 -- Form of Newspaper Announcement*
99.8 -- Proposed Form of Ford Letter to Holders of 8.25% Preferred Stock, Series
B*
</TABLE>
-------------------------
* To be filed by amendment.
<PAGE> 1
EXHIBIT 1
DEALER MANAGER AGREEMENT
September 19, 1995
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1329
DEAN WITTER REYNOLDS INC.
2 World Trade Center, 65th Floor
New York, New York 10048
A.G. EDWARDS & SONS, INC.
1 North Jefferson
St. Louis, Missouri 63103-2205
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
LEHMAN BROTHERS
3 World Financial Center
New York, New York 10285
PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
New York, New York 10019
SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
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
<PAGE> 2
2
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
Merrill Lynch & Co. of Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), Dean Witter Reynolds Inc. ("Dean Witter"), A.G. Edwards &
Sons, Inc. ("A.G. Edwards"), Goldman, Sachs & Co. ("Goldman Sachs"), Lehman
Brothers ("Lehman"), PaineWebber Incorporated ("PaineWebber") and Smith Barney
Inc. ("Smith Barney" and, together with Merrill Lynch, Dean Witter, A.G.
Edwards, Goldman Sachs, Lehman 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
<PAGE> 3
3
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
<PAGE> 4
4
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
Merrill Lynch 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.
<PAGE> 5
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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
<PAGE> 6
6
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
<PAGE> 7
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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
<PAGE> 8
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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.
<PAGE> 9
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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 Merrill Lynch, Pierce, Fenner & Smith
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
<PAGE> 10
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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
<PAGE> 11
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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
<PAGE> 12
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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
<PAGE> 13
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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 & Lybrand 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,
<PAGE> 14
14
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 Merrill Lynch, Pierce, Fenner & Smith 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
<PAGE> 15
15
to the Company in writing by any Co-Dealer Manager through Merrill
Lynch, Pierce, Fenner & Smith 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
<PAGE> 16
16
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
<PAGE> 17
17
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 & Tunnell,
Delaware counsel for the Company, dated as of such date, to the effect
that:
<PAGE> 18
18
(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 J.M. Rintamaki, 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
<PAGE> 19
19
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,
<PAGE> 20
20
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
<PAGE> 21
21
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
<PAGE> 22
22
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 Dennis E. Ross, 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
<PAGE> 23
23
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.
<PAGE> 24
24
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 Merrill Lynch & Co., World Financial
Center, North Tower, New York, New York 10281-1305, attention Syndicate
Operations, with a copy to Arbie R. Thalacker, Esq., Shearman & Sterling, 599
Lexington Avenue, New York, New York 10022, and notices to the Company and the
Trust shall be directed to either of them c/o Ford Motor Company, The American
Road, Dearborn, Michigan 48121, 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.
<PAGE> 25
25
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:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
By: Merrill Lynch, Pierce, Fenner
& Smith Incorporated
By:___________________________
<PAGE> 1
EXHIBIT 4.1
================================================================================
FORD MOTOR COMPANY,
Issuer
and
[__________________],
Trustee
_________________________________________________________________
INDENTURE
Dated as of [_________], 1995
_________________________________________________________________
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
FORD MOTOR COMPANY
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of [ ], 1995
-----------------------------------------------------------------
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
----------------- ---------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
Section 312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
Section 315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
Section 316(a)(last
sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02, 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.04
</TABLE>
_________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS*
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PURPOSE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . 1
SECTION 1.01. Certain Terms Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.03. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.04. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.05. Trust Indenture Act of 1939. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.06. Effect of Headings and Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.07. Separability Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.08. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.09. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . 13
SECTION 2.01. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.02. Form of Face of Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.03. Form of Reverse of Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.04. Form of Trustee's Certificate of Authentication. . . . . . . . . . . . . . . . . . . . 22
SECTION 2.05. Securities Issuable in the Form of a Global Security. . . . . . . . . . . . . . . . . . 22
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . 24
SECTION 3.01. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.02. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.03. Execution, Authentication, Delivery and Dating. . . . . . . . . . . . . . . . . . . . . 26
---------------
* The table of contents, consisting of pages i to viii, is not part of this Indenture.
</TABLE>
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SECTION 3.04. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.05. Registration; Registration of Transfer and Exchange. . . . . . . . . . . . . . . . . . 28
SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities. . . . . . . . . . . . . . . . . . . . 29
SECTION 3.07. Payment of Interest; Interest Rights Preserved. . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.09. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.10. Computation of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . 32
SECTION 4.01. Satisfaction and Discharge of Indenture. . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.02. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.03. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.04. Repayment of Moneys Held by Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.05. Repayment of Moneys Held by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . 37
SECTION 5.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. . . . . . . . . . . . . . . . . . . 39
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.04. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.06. Application of Money Collected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.07. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.09. Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.10. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.11. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.12. Control by Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.13. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.14. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . 45
SECTION 6.01. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.02. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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SECTION 6.03. Trustee Not Responsible for Recitals in Indenture or in
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.04. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.05. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.06. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.07. Corporate Trustee Required; Eligibility. . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.08. Resignation and Removal; Appointment of Successor. . . . . . . . . . . . . . . . . . . 49
SECTION 6.09. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.10. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY . . . . . . . . . . . . . . . . 52
SECTION 7.01. Disclosure of Names and Addresses of Holders. . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.02. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.03. Reports by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE . . . . . . . . . 53
SECTION 8.01. Consolidations and Mergers of Company and Conveyances
Permitted Subject to Certain Conditions . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.02. Successor Corporation Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.03. Opinion of Counsel to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . 54
SECTION 9.01. Supplemental Indentures Without Consent of Holders. . . . . . . . . . . . . . . . . . . 54
SECTION 9.02. Supplemental Indentures With Consent of Holders. . . . . . . . . . . . . . . . . . . . 56
SECTION 9.03. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.04. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.05. Reference in Securities to Supplemental Indentures. . . . . . . . . . . . . . . . . . . 58
ARTICLE TEN
PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . 59
SECTION 10.01. Payment of Principal, Premium and Interest. . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.03. Money for Securities Payments to be Held in Trust. . . . . . . . . . . . . . . . . . . 59
SECTION 10.04. Statement by Officers as to Default. . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.05. Further Instruments and Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . 61
SECTION 11.01. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.02. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.03. Selection by Trustee of Securities to be Redeemed. . . . . . . . . . . . . . . . . . . 61
SECTION 11.04. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.06. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.07. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE TWELVE
REPAYMENT AT OPTION OF HOLDERS . . . . . . . . . . . 63
SECTION 12.01. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 12.02. Repayment of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 12.03. Exercise of Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 12.04. When Securities Presented for Repayment Become Due and
Payable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 12.05. Securities Repaid in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE THIRTEEN
SINKING FUNDS . . . . . . . . . . . . . . . . 65
SECTION 13.01. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities. . . . . . . . . . . . . . . . . 65
SECTION 13.03. Redemption of Securities for Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE FOURTEEN
SUBORDINATION . . . . . . . . . . . . . . . . 66
SECTION 14.01. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 14.02. Rights of Holders of Senior Obligations. . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 14.03. Payments and Distributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 14.04. Payments by the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 14.05. Appointment of the Trustee by Holders . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 14.06. Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 14.07. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 14.08. Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
</TABLE>
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ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICE
DIRECTORS AND EMPLOYEES . . . . . . . . . . . . . 70
SECTION 15.01. Exemption from Individual Liability. . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . 71
SECTION 16.01. Successors and Assigns of Company Bound by Indenture. . . . . . . . . . . . . . . . . 71
SECTION 16.02. Acts of Board, Committee or Officer of Successor
Corporation Valid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 16.03. Required Notices or Demands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 16.04. Indenture and Securities to be Construed in Accordance
with the Laws of the State of New York . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 16.05. Indenture May be Executed in Counterparts. . . . . . . . . . . . . . . . . . . . . . . 72
TESTIMONIUM
SIGNATURES AND SEALS
</TABLE>
<PAGE> 8
INDENTURE, dated as of the [____] day of [_________], 1995,
among FORD MOTOR COMPANY, a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter sometimes called the "Company"), and
[______________], a corporation duly organized and existing under the laws of
the State of New York (hereinafter sometimes called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, for its lawful corporate purposes, the Company deems
it necessary to issue its securities and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided;
WHEREAS, this Indenture is subject to, and shall be governed
by, the provisions of the Trust Indenture Act of 1939, as amended, that are
required to be part of and govern indentures qualified under the Trust
Indenture Act of 1939, as amended; and
WHEREAS, all things necessary to constitute these presents a
valid indenture and agreement according to its terms have been done and
performed by the Company, and the execution of this Indenture has in all
respects been duly authorized by the Company, and the Company, in the exercise
of legal right and power in it vested, executes this Indenture;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Securities are made, executed, authenticated, issued and delivered, the
Company and the Trustee covenant and agree with each other, for the equal and
proportionate benefit of the respective Holders from time to time of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Certain Terms Defined. The terms defined in
this Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act of 1939 or which are by reference therein defined in
the Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such
<PAGE> 9
2
terms in said Trust Indenture Act and in said Securities Act as in force at the
date of this Indenture as originally executed.
Certain terms, used principally in Article Six, are defined in
that Article.
Act:
The term "Act", when used with respect to any Holder, shall
have the meaning specified in Section 1.04.
Affiliate; Control:
The term "Affiliate" of any specified Person shall mean any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified Person
shall mean the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" shall have
meanings correlative to the foregoing.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper printed
in the English language and customarily published at least once a day on each
business day in each calendar week and of general circulation in the Borough of
Manhattan, the City and State of New York, whether or not such newspaper is
published on Saturdays, Sundays and legal holidays.
Board of Directors:
The term "Board of Directors" or "Board", when used with
reference to the Company, shall mean the board of directors of the Company or
any committee of such board duly authorized to act with respect hereto.
Board Resolution:
The term "Board Resolution", when used with reference to the
Company, shall mean a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Trustee.
<PAGE> 10
3
business day:
The term "business day", when used with respect to any Place
of Payment, shall mean any day which is not a Saturday or a Sunday or a day on
which banking institutions in such Place of Payment are authorized or obligated
by law or regulation to close.
Commission:
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or, if at any time after the execution of
this instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act of 1939, then the body performing
such duties at such time.
Common Securities:
The term "Common Securities" shall mean the common undivided
beneficial interests in the assets of the applicable Ford Motor Company Capital
Trust.
Company:
The term "Company" shall mean Ford Motor Company, a Delaware
corporation, and, subject to the provisions of Article Eight, shall also
include its successors and assigns.
Company Request; Company Order:
The term "Company Request" or "Company Order" shall mean a
written request or order signed in the name of the Company by any two of its
Chairman of the Board, its President, an Executive Vice President, a Vice
President, its Treasurer, an Assistant Treasurer, its Controller, an Assistant
Controller, its Secretary or an Assistant Secretary and delivered to the
Trustee.
Corporate Trust Office:
The term "Corporate Trust Office" or other similar term shall
mean the principal office of the Trustee in the Borough of Manhattan, The City
of New York, the State of New York, at which at any particular time its
corporate trust business shall be administered, which office at the date of
this Indenture is located at [_______________].
<PAGE> 11
4
corporation:
The term "corporation" includes corporations, associations,
companies and business trusts.
Declaration of Trust:
The term "Declaration of Trust" shall mean the Declaration of
Trust of the Ford Motor Company Capital Trust, if any, specified in the
applicable Board Resolution or supplemental indenture establishing a particular
series of Securities pursuant to Section 3.01 hereof.
Defaulted Interest:
The term "Defaulted Interest" shall have the meaning specified
in Section 3.07.
Depository:
The term "Depository" shall mean, with respect to Securities
of any series for which the Company shall determine that such Securities will
be issued as a Global Security, The Depository Trust Company, New York, New
York, another clearing agency or any successor registered under the Securities
and Exchange Act of 1934, as amended, or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.05 or 3.01.
Event of Default:
The term "Event of Default" shall have the meaning specified
in Section 5.01.
Ford Motor Company Capital Trust:
Ford Motor Company Capital Trust shall mean any statutory
business trust created under the laws of the State of Delaware specified in the
applicable Board Resolution or supplemental indenture establishing a particular
series of Securities pursuant to Section 3.01 hereof.
Global Security:
The term "Global Security" shall mean, with respect to any
series of Securities, one or more Securities executed by the Company and
authenticated and delivered by the Trustee to the Depository or pursuant to the
Depository's instruction, all in accordance with this Indenture and pursuant to
a Company Order, which (i) shall be registered in the name of
<PAGE> 12
5
the Depository or its nominee and (ii) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of such of the
Outstanding Securities of such series as shall be specified therein.
Holder:
The term "Holder" shall mean a Person in whose name a Security
is registered in the Security Register.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the or those particular series
of Securities established as contemplated by Section 3.01; provided, however,
that, if at any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or more series of
Securities for which a Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the or those particular series
of Securities for which such Person is Trustee established as contemplated by
Section 3.01, exclusive, however, of any provisions or terms which relate
solely to other series of Securities for which such Person is Trustee,
regardless of when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures supplemental
hereto executed and delivered after such Person had become such Trustee but to
which such Person, as such Trustee, was not a party.
interest:
The term "interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest only after Maturity,
shall mean interest payable after Maturity.
Interest Payment Date:
The term "Interest Payment Date", when used with respect to
any Security, shall mean the Stated Maturity of an instalment of interest on
such Security.
<PAGE> 13
6
Maturity:
The term "Maturity", when used with respect to any Security,
shall mean the date on which the principal of such Security or an instalment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
Officers' Certificate:
The term "Officers' Certificate", when used with reference to
the Company, shall mean a certificate signed by any two of the Chairman of the
Board, the President, an Executive Vice President, a Vice President, the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary, of the Company and delivered to the
Trustee. Each such certificate shall include (except as otherwise provided in
this Indenture) the statements provided for in Section 1.02, if and to the
extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee of or of counsel to the
Company, and delivered to the Trustee. Each such opinion shall include the
statements provided for in Section 1.02, if and to the extent required by the
provisions thereof.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any
Security which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02.
Outstanding:
The term "Outstanding", when used with respect to Securities,
shall mean, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment, redemption
or repayment at the option of the Holder money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such
<PAGE> 14
7
Securities or portions thereof are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture;
provided, however, that, in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver under this Indenture,
Securities owned by the Company or any other obligor on the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding for the purposes of such determination, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor on the Securities or any Affiliate of
the Company or of such other obligor.
Paying Agent:
The term "Paying Agent" shall mean any Person authorized by the
Company to pay the principal of (and premium, if any, on) or interest, if any,
on any Securities on behalf of the Company.
Person:
The term "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Place of Payment:
The term "Place of Payment", when used with respect to the
Securities of any series, shall mean the place or places where the principal of
(and premium, if any, on) and interest, if any, on the Securities of that
series are payable, as specified as contemplated by Section 3.01.
<PAGE> 15
8
Predecessor Security:
The term "Predecessor Security" of any particular Security shall
mean every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
Preferred Securities:
The term "Preferred Securities" means the preferred undivided
beneficial interests in the assets of the applicable Ford Motor Company Capital
Trust.
Redemption Date:
The term "Redemption Date" shall mean, when used with respect to any
Security to be redeemed, in whole or in part, the date fixed for such
redemption by or pursuant to this Indenture.
Redemption Price:
The term "Redemption Price" shall mean, when used with respect to
any Security to be redeemed, the price at which it is to be redeemed by or
pursuant to this Indenture.
Regular Record Date:
The term "Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series shall mean the date
specified for that purpose as contemplated by Section 3.01.
Repayment Date:
The term "Repayment Date" shall mean, when used with respect to any
Security to be repaid at the option of the Holder, the date fixed for such
repayment by or pursuant to this Indenture.
<PAGE> 16
9
Repayment Price:
The term "Repayment Price" shall mean, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid by or pursuant to this Indenture.
responsible officer:
The term "responsible officer" when used with respect to the Trustee
shall mean any officer within the Trustee's corporate trust department (or any
successor group) including without limitation any vice president, any assistant
vice president, any assistant secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
Securities:
The term "Securities" shall have the meaning stated in the first
recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture; provided, however, that, if
at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the series as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of any series as to which
such Person is not Trustee.
Security Exchange:
The term "Security Exchange," when used with respect to the
Securities of any series which are held as trust assets of a Ford Motor Company
Capital Trust pursuant to the Declaration of Trust of such Ford Motor Company
Capital Trust, shall mean the distribution of the Securities of such series by
such Ford Motor Company Capital Trust in exchange for the Preferred Securities
and Common Securities of such Ford Motor Company Capital Trust in dissolution
of such Ford Motor Company Capital Trust pursuant to the Declaration of Trust
of such Ford Motor Company Capital Trust.
Security Register; Security Registrar:
The terms "Security Register" and "Security Registrar" shall have
the respective meanings set forth in Section 3.05.
<PAGE> 17
10
Senior Obligations:
The term "Senior Obligations" shall mean (a) the principal of and
premium, if any, and interest on all indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created, (i) for money
borrowed by the Company, (ii) for money borrowed by, or obligations of, others
and either assumed or guaranteed, directly or indirectly, by the Company, (iii)
in respect of letters of credit and acceptances issued or made by banks, (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the payment of
which the Company is directly liable, or (v) constituting unsecured
indebtedness of the Company, (b) all deferrals, renewals, extensions and
refundings of, and amendments, modifications and supplements to, any such
indebtedness and (c) all other general unsecured obligations, including without
limitation, trade payables. As used in the preceding sentence the term
"purchase money indebtedness" means indebtedness evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or
other security interest) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, unless by its terms such indebtedness is
subordinate to other indebtedness of the Company. Notwithstanding anything to
the contrary in this Indenture or the Securities, Senior Obligations shall not
include (i) any indebtedness of the Company which, by its terms or the terms of
the instrument creating or evidencing it, is subordinate in right of payment to
or pari passu with the Securities, as the case may be, and, in particular, the
Securities shall rank pari passu with all other debt securities and guarantees
in respect of those debt securities, issued to (y) any other Ford Motor Company
Capital Trust [and (z) any other trusts, partnerships or any other entity
affiliated with the Company which is a financing vehicle of the Company
("Financing Entity") in connection with an issuance of preferred securities by
such Financing Entity, or (ii) any indebtedness of the Company to a
Subsidiary.]
Special Record Date:
The term "Special Record Date" for the payment of any Defaulted
Interest shall mean a date fixed by the Trustee pursuant to Section 3.07.
Stated Maturity:
The term "Stated Maturity", when used with respect to any Security
or any installment of principal thereof or interest thereon, shall mean the
date specified in such Security as the fixed date on which the principal of
such Security or such instalment of principal or interest is due and payable.
<PAGE> 18
11
Trustee:
The term "Trustee" shall mean [______________] and, subject to the
provisions of Article Six, shall also include its successors and assigns, and,
if at any time there is more than one Person acting as Trustee hereunder,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
Trust Indenture Act of 1939 or TIA:
The term "Trust Indenture Act of 1939" or "TIA" (except as herein
otherwise expressly provided) shall mean the Trust Indenture Act of 1939, as
amended, as in force at the date of this Indenture as originally executed.
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than pursuant to
section 10.04, shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one
<PAGE> 19
12
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section 1.04.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in
<PAGE> 20
13
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee, the Security Registrar, any Paying Agent or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 1.05. Trust Indenture Act of 1939. This Indenture is
subject to, and shall be governed by, the provisions of the TIA required to be
part of and govern indentures qualified under the TIA.
SECTION 1.06. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.07. Separability Clause. In case any provision in this
Indenture or in any Security shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.08. Benefits of Indenture. Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.09. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security shall not be a
business day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but
may be made on the next succeeding business day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity; provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities of each series shall
be in substantially the form set forth in this Article, or in such other form
or forms as shall be established by or pursuant to a Board Resolution of the
Company or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have
<PAGE> 21
14
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof.
If the form or forms of Securities of any series are established by action
taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 2.02. Form of Face of Security. [If the Security is an
Original Issue Discount Security, insert--FOR PURPOSES OF SECTIONS 1273 AND
1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT ON THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT AND THE ISSUE DATE IS
, 19 [, -- AND] THE YIELD TO MATURITY IS ___ %. [THE METHOD USED TO DETERMINE
THE YIELD IS ____________ AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE
TO THE SHORT ACCRUAL PERIOD OF _______________, 19__ TO ___________, 19__ is
___% OF THE PRINCIPAL AMOUNT OF THIS SECURITY.]]
FORD MOTOR COMPANY
___% NOTE DUE ______________
____________________________
[CUSIP No. ___________]
$ No.
FORD MOTOR COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to
, or registered assigns, the principal
sum of Dollars on [If the Security is to bear interest
prior to Maturity, insert--, and to pay interest thereon from or from
the most recent Interest
<PAGE> 22
15
Payment Date to which interest has been paid or duly provided for,
semi-annually on and in each year, commencing , at the rate of % per
annum, until the principal hereof is paid or made available for payment [If
applicable, insert--, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of % per annum on any overdue
principal and premium and on any overdue instalment of interest]. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the or (whether or not a business day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption,
upon repayment at the option of the Holder or at Stated Maturity and in such
case the overdue principal of this Security shall bear interest at the rate of
% per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to
the date payment of such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any, on) and [if
applicable, insert--any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts [if applicable, insert--; and in immediately
available funds] [if applicable, insert--; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register] [if applicable, insert--; provided, however, that at the
option of the Company payment of interest may be made by
<PAGE> 23
16
wire transfer [of immediately available funds] to an account of the Person
entitled thereto as such account shall be provided to the Security Registrar
and shall appear on the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
<PAGE> 24
17
IN WITNESS WHEREOF, the Company has caused this Security to be
signed by its Chairman of the Board, or its President, or one of its Executive
Vice Presidents, or one of its Vice Presidents, and by its Treasurer or one of
its Assistant Treasurers, or its Secretary or one of its Assistant Secretaries,
manually or in facsimile, and a facsimile of its corporate seal to be imprinted
hereon.
Dated:
[CORPORATE SEAL]
FORD MOTOR COMPANY
By________________________________
By________________________________
Attest:
_____________________________
SECTION 2.03. Form of Reverse of Security. This Security is
one of a duly authorized issue of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more series under an
Indenture, dated as of [__________], 1995 (herein called the "Indenture"),
between the Company and [__________________], Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture with
respect to the series of which this Security is a part), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to $ ].
[If applicable, insert--The securities of this series are not
subject to redemption.]
[If applicable, insert--The Securities of this series are
subject to redemption upon not less than 10 days' notice by mail, [if
applicable, insert--(1) on in any year commencing with the year and
ending with the year at a Redemption Price equal to % of the
principal amount, and (2)] at any time [on or after , 19 ], as a whole
or in part, at the election of the Company, at the following Redemption Prices
(expressed as
<PAGE> 25
18
percentages of the principal amount): If redeemed [on or before , %,
and if redeemed] during the 12-month period beginning of the years indicated,
<TABLE>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof, all as provided
in the Indenture.]
[If applicable, insert--The Securities of this series are
subject to redemption upon not less than 10 days' notice by mail, (1) on in
any year commencing with the year and ending with the year
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on
or after ], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12-month period beginning
of the years indicated,
<TABLE>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise)
<PAGE> 26
19
with accrued interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Regular Record Dates referred to on the
face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
, redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ___% per annum.]
[The sinking fund for this series provides for the redemption
on in each year beginning with the year and ending with the year
of [not less than] $ [("mandatory sinking fund")] and not more than $
aggregate principal amount of Securities of this series. [Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made in the [describe order] order in
which they become due.]]
In the event of redemption of this Security in part only, a
new Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
[If applicable, insert--The Securities of this series are
subject to the [defeasance] [covenant defeasance] [defeasance and covenant
defeasance] provisions set forth in Article Four of the Indenture.]
[If applicable, insert--The Securities of this series are
subject to repayment in whole [or in part] [but not in part], in integral
multiples of $ , on [and ] at the option of the Holder hereof
at a Repayment Price equal to % of the principal amount thereof [to
be repaid], together with interest thereon accrued to the Repayment Date, all
as provided in the Indenture[; provided, however, that the principal amount of
this Security may not be repaid in part if following such repayment, the unpaid
principal amount of this Security would be less than [$ ] [the minimum
authorized denomination for Securities of this series]]. To be repaid at the
option of the Holder, this Security, with the "Option to Elect Repayment" form
duly completed by the Holder hereof, must be received by the Company at its
office or agency maintained for that purpose in the Borough of Manhattan, the
City and State of New York, not earlier than 30 days nor later than 15 days
prior to the Repayment Date. Exercise of such option by the Holder of this
Security shall be irrevocable unless waived by the Company. [In the event of
repayment of this Security at the option of the Holder in part only, a new
Security or Securities of this series for the portion hereof not repaid will be
issued in the name of the Holder hereof upon the cancellation hereof.]]
<PAGE> 27
20
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to--insert formula for
determining the amount. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Outstanding Securities of each series,
on behalf of the Holders of all Outstanding Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the amount of principal of
(and premium, if any, on) and interest, if any, on this Security herein
provided, and at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any, on) and interest, if any, on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this
<PAGE> 28
21
series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of different authorized
denominations as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
[If applicable, insert--
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Security [(or the portion thereof specified
below)], pursuant to its terms, on the "Repayment Date" first occurring after
the date of receipt of the within Security as specified below, at a Repayment
Price equal to ___% of the principal amount thereof, together with interest
thereon accrued to the Repayment Date, to the undersigned at:
_______________________________________________________________________________
_______________________________________________________________________________
(Please Print or Type Name and Address of the Undersigned.)
For this Option to Elect Repayment to be effective, this
Security with the Option to Elect Repayment duly completed must be received not
earlier than 30 days prior to
<PAGE> 29
22
the Repayment Date and not later than 15 days prior to the Repayment Date by
the Company at its office or agency in the Borough of Manhattan, the City and
State of New York.
[If less than the entire principal amount of the within
Security is to be repaid, specify the portion thereof (which shall be $
or an integral multiple thereof) which is to be repaid: $ .
The principal amount of this Security may not be repaid in part if, following
such repayment, the unpaid principal amount of this Security would be less than
[$ ] [the minimum authorized denomination for Securities of this
series].]
[If less than the entire principal amount of the within Security is to
be repaid, specify the denomination(s) of the Security(ies) to be issued for
the unpaid amount ($ or any integral multiple of $ ): $
.]
Dated:
_____________________________________
Note: The signature to this Option
to Elect Repayment must correspond
with the name as written upon the
face of the within Security in every
particular without alterations or
enlargement or any change whatsoever.]
SECTION 2.04. Form of Trustee's Certificate of
Authentication. This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[________________],
as Trustee
By __________________________
Authorized Signatory
SECTION 2.05. Securities Issuable in the Form of a Global
Security. (a) If the Company shall establish pursuant to Section 3.01 that
the Securities of a particular series are to be issued as a Global Security,
then, notwithstanding clause (8) of Section 3.01, the Company shall execute and
the Trustee shall, in accordance with Section 3.03 and the Company Order
delivered to the Trustee thereunder, authenticate and deliver, the Global
Security, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of such of the Outstanding Securities
of such series as shall be
<PAGE> 30
23
specified therein, (ii) shall be registered in the name of the Depository or
its nominee, (iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise provided in
Section 2.05 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository."
(b) Notwithstanding any other provision of this Section
2.05 or of Section 3.05, the Global Security of a series may be transferred, in
whole but not in part and in the manner provided in Section 3.05, only to
another nominee of the Depository for such series, or to a successor Depository
for such series selected or approved by the Company or to a nominee of such
successor Depository.
(c) If at any time the Depository for a series of
Securities notifies the Company that it is unwilling or unable to continue as
Depository for such series or if at any time the Depository for such series
shall no longer be registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation and a
successor Depository for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
as the case may be, this Section 2.05 shall no longer be applicable to the
Securities of such series and the Company will execute, and the Trustee will
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such
series, in exchange for such Global Security. In addition, the Company may at
any time determine that the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this Section 2.05
shall no longer apply to the Securities of such series. In such event the
Company will execute and the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series, in exchange for such
Global Security. Upon the exchange of the Global Security for such Securities
in definitive registered form without coupons, in authorized denominations, the
Global Security shall be cancelled by the Trustee. Such Securities in
definitive registered form issued in exchange for the Global Security pursuant
to this Section 2.05(c) shall be registered in such names and in such
authorized denominations as the Depository, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
<PAGE> 31
24
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is not limited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to Board Resolutions of the Company and set
forth in Officers' Certificates of the Company, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following as applicable:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 2.05,
3.04, 3.05, 3.06, 9.05, 11.07 or 12.05);
(3) the date or dates on which the principal of the
Securities of the series is payable or the manner in which such dates
are determined;
(4) the rate or rates at which the Securities of the series
shall bear interest, or the manner in which such rates are determined,
the date or dates from which such interest shall accrue, or the manner
in which such dates are determined, the Interest Payment Dates on
which such interest shall be payable and the Regular Record Dates, if
any, for the interest payable on any Interest Payment Date;
(5) the place or places where the principal of (and
premium, if any, on) and any interest, if any, on Securities of the
series shall be payable;
(6) the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which or the date or dates on which, the
price or prices at which and the terms and conditions upon which
Securities of the
<PAGE> 32
25
series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of
the series shall be issuable;
(9) if other than the Trustee, the identity of the
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.02;
(11) if other than such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public or private debts, the coin or currency or currency
unit in which payment of the principal of (and premium, if any, on) or
interest, if any, on the Securities of the series shall be payable;
(12) if the amount of payment of principal of (and
premium, if any, on) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or other
method based on a coin currency or currency unit other than that in
which the Securities are stated to be payable, the manner in which
such amounts shall be determined;
(13) if the principal of (and premium, if any, on) or
interest, if any, on the Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in a coin or
currency or currency unit other than that in which the Securities are
stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(14) whether the Securities of the series are issuable as
a Global Security and, in such case, the identity of the Depository
for such series;
(15) the forms of the Securities of that series (if other
than the form set forth in Article Two);
(16) any provisions in modification of, in addition to or
in lieu of the provisions of Article Four that shall be applicable to
the Securities of the series; and
(17) any other terms, conditions, rights and preferences
(or limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
<PAGE> 33
26
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and set forth in such Officers'
Certificate or in any indenture supplemental hereto. Not all Securities of any
one series need be issued at the same time, and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, such Board Resolution and the Officers'
Certificate setting forth the terms of the series shall be delivered to the
Trustee at or prior to the delivery of the Company Order for authentication and
delivery of Securities of such series.
SECTION 3.02. Denominations. The Securities of each series
shall be issuable in definitive registered form without coupons and, except for
any Global Security, in such denominations as shall be specified as
contemplated by Section 3.01. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series, other
than a Global Security, shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be signed on behalf of the Company by its Chairman of the
Board, its President, one of its Executive Vice Presidents or one of its Vice
Presidents and its Treasurer or one of its Assistant Treasurers, its Secretary
or one of its Assistant Secretaries, under its corporate seal reproduced
thereon. Such signatures upon the Securities may be the manual or facsimile
signatures of the present or any future such authorized officers and may be
imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of
individuals who were at the time they signed such Securities the proper
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If not all the Securities of any series are to be issued at
one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and determining
terms of particular Securities of such series such as interest rate, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this
<PAGE> 34
27
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Section 315) shall be fully protected in relying
upon, an Opinion of Counsel stating:
(a) that the form or forms and terms of such Securities
have been established in conformity with the provisions of this
Indenture;
(b) that all conditions precedent to the authentication
and delivery of such Securities have been complied with and that such
Securities, when completed by appropriate insertions and executed by
the Company and delivered to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute the legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities; and
(c) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities have been
complied with.
If not all the Securities of any series are to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel at the
time of issuance of each Security, but such opinion with appropriate
modifications shall be delivered at or before the time of issuance of the first
Security of such series.
The Trustee shall not be required to authenticate and deliver
any such Securities if the Trustee, being advised by counsel, determines that
such action (i) may not lawfully be taken or (ii) would expose the Trustee to
personal liability to existing Holders of Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein, executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
<PAGE> 35
28
SECTION 3.04. Temporary Securities. Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as the
definitive Securities of such series.
SECTION 3.05. Registration; Registration of Transfer and
Exchange. The Company shall cause to be kept at the office or agency of the
Company maintained pursuant to Section 10.02 a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall, subject to the provisions of Section 2.05,
provide for the registration of Securities and transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Subject to the provisions of Section 2.05, upon surrender for
registration of transfer of any definitive Security of any series at the office
or agency in a Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new definitive Securities of the same
series of any authorized denominations and of a like aggregate principal
amount.
Subject to the provisions of Section 2.05, at the option of
the Holder, definitive Securities of any series may be exchanged for other
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount, upon surrender of the definitive
Securities to be exchanged at such office or agency. Whenever any definitive
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall
<PAGE> 36
29
authenticate and deliver, the definitive Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer, in
form satisfactory to the Company and the Security Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for redemption
of Securities of that series under Section 11.03 and ending at the close of
business on the day of the mailing of notice of redemption, (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part,
or (iii) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
SECTION 3.06. Mutilated, Destroyed, Lost or Stolen
Securities. If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount, and bearing a number not contemporaneously outstanding, or,
in case any such mutilated Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number
<PAGE> 37
30
not contemporaneously outstanding or, in case any such destroyed, lost or
stolen Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 10.02;
provided, however, that each instalment of interest on any Security may at the
Company's option be paid by mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 3.08,
to the address of such Person as it appears on the Security Register or by
wire transfer to an account of the Person entitled thereto as such account
shall be provided to the Security Registrar and shall appear on the Security
Register.
Any interest on any Security of any series which is payable
but is not punctually paid or duly provided for on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted
<PAGE> 38
31
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such
series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.08. Persons Deemed Owners. Prior to due
presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any, on) and
(subject to Section 3.07) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
<PAGE> 39
32
SECTION 3.09. Cancellation. All Securities surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities held by the Trustee may be
destroyed by it and, if so destroyed, the Trustee shall deliver its
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it.
SECTION 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series, any
interest on the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. (a)
If at any time (1) the Company shall have paid or caused to be paid the
principal of and interest on all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than Securities
of such series and Coupons appertaining thereto which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 3.06) as
and when the same shall have become due and payable, or (2) the Company shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities of such series and Coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 3.06) or (3) in the case of any series of Securities
where the exact amount (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such series and all
unmatured Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and (ii) the Company shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the entire amount in
cash (other than moneys repaid by the Trustee or any paying agent to the
Company in accordance with Section 4.05) or, in the case of any series of
Securities the payments on which may only be
<PAGE> 40
33
made in Dollars, direct obligations of, or obligations guaranteed by, the
United States of America, backed by its full faith and credit ("U.S.
Government Obligations"), maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash, or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (X) the principal and interest on all
Securities of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (Y) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series;
and if, in any such case, the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company, then this Indenture shall cease to
be of further effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series and of Coupons appertaining thereto and
the Company's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the original stated
due dates therefor (but not upon acceleration), and remaining rights of the
Holders to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vi) the obligations of the Company under
Section 3.05) and the Trustee, on demand of the Company accompanied by an
Officer's Certificate and an Opinion of Counsel which comply with Section 1.02
and at the cost and expense of the Company, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture; provided,
that the rights of Holders of the Securities and Coupons to receive amounts in
respect of principal of and interest on the Securities and Coupons held by them
shall not be delayed longer than required by then applicable mandatory rules or
policies of any securities exchange upon which the Securities are listed. The
Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Securities of such series. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.06 and the obligations of the Trustee under Section
4.01 shall survive.
(b) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 3.01. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (1)
below, the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the 91st day after the date
<PAGE> 41
34
of the deposit referred to in clause (1) below, and the provisions of this
Indenture with respect to the Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as to (i) rights of
registration of transfer and exchange of Securities of such series and of
Coupons appertaining thereto and the Company's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Company under Section 3.04) and the Trustee, at the
expense of the Company, shall at the Company's request, execute proper
instruments acknowledging the same, if:
(1) with reference to this provision the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which
may only be made in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such times and in such amounts as will
insure the availability of cash or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and
payable and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms
of the Indenture and the Securities of such series;
(2) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument to
which the Company is a party or by which it is bound;
(3) the Company has delivered to the Trustee an Opinion
of Counsel based on the fact that (x) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling
or (y) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and such opinion shall confirm that, the Holders of the Securities of
such series and Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the
<PAGE> 42
35
same times, as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(4) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
(c) The Company shall be released from its obligations with
respect to the Securities of any series, and any Coupons appertaining thereto,
Outstanding (except for: (i) the obligations set forth as exceptions above in
paragraph (a); (ii) the obligations to (w) compensate and indemnify the
Trustee, (x) to appoint a successor Trustee, (y) to repay certain moneys held
by the Paying Agent and (z) to return certain unclaimed moneys held by the
Trustee; and (iii) such obligations of the Company as are required by the Trust
Indenture Act) on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of any
series, the Company is required only to comply with the above obligations and
shall have no liability in respect of any term, condition or limitation set
forth in any other Section, whether directly or indirectly by reason of any
reference to such Section by any other remaining provision or in any other
document and such compliance only to the above obligations shall not constitute
an Event of Default under Section 5.01. The following shall be the conditions
to application of this subsection (c) of this Section 4.01:
(1) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the Securities
of such series and coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of Securities the payments
on which may only be made in Dollars, U.S. Government Obligations
maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (X) the principal and
interest on all Securities of such series and Coupons appertaining
thereto and (Y) any mandatory sinking fund payments on the day on
which such payments are due and payable in accordance with the terms
of the Indenture and the Securities of such series.
(2) Such covenant defeasance shall not cause the Trustee
to have a conflicting interest for purposes of the Trust Indenture Act
of 1939 with respect to any securities of the Company.
<PAGE> 43
36
(3) Such covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party or by
which it is bound.
(4) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the Securities of
such series and Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(5) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the covenant defeasance
contemplated by this provision have been complied with.
SECTION 4.02. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions
of the last paragraph of Section 10.03, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.01 in respect of the Outstanding Securities of such
series shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 4.01 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company, from time to time upon Company
Request, any money or U.S. Government Obligations held by it as provided in
Section 4.01 which, in the opinion of a nationally recognized firm of
independent public accountants certification thereof delivered to the Trustee,
are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent "defeasance" or "covenant defeasance".
SECTION 4.03. Reinstatement. If the Trustee is unable to
apply any money or U.S. Government Obligations in accordance with Section 4.02
with respect to the
<PAGE> 44
37
Securities of any series by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the obligations of the Company under
this Indenture and such Securities shall be revived and reinstated as though no
deposit had occurred with respect to the Securities of such series pursuant to
Section 4.01 until such time as the Trustee is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 4.02.
SECTION 4.04. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture all moneys
then held by any Paying Agent (other than the Trustee, if the Trustee be a
Paying Agent) under the provisions of this Indenture shall, upon demand of the
Company, be repaid to it or paid to the Trustee and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
SECTION 4.05. Repayment of Moneys Held by Trustee. Any
moneys deposited with the Trustee or any Paying Agent for the payment of the
principal of (or premium, if any, on) or interest, if any, on any Security of
any series and not applied but remaining unclaimed by the Holders for two years
after the date upon which the principal of (or premium, if any, on) or
interest, if any, on such Security shall have become due and payable, shall be
repaid to the Company by the Trustee or such Paying Agent on demand; and the
Holder of any of the Securities entitled to receive such payment shall
thereafter look only to the Company for the payment thereof and all liability
of the Trustee or such Paying Agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be mailed to each such Holder or published once a week for two successive weeks
(in each case on any day of the week) in an Authorized Newspaper, or both, a
notice that said moneys have not been so applied and that after a date named
therein any unclaimed balance of said moneys then remaining will be returned to
the Company. It shall not be necessary for more than one such publication to
be made in the same newspaper.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default. "Event of Default",
wherever used herein with respect to Securities of any series, shall mean any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
<PAGE> 45
38
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity, and
continuance of such default for five business days; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series, and
continuance of such default for five business days; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of such
default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under the Title 11 of the United
States Code or any other similar Federal or State law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of the property of the
Company, or ordering the winding up or liquidation of the affairs of
the Company, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case
or proceeding under Title 11 of the United States Code or any other
similar Federal or State law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company to
the entry of a decree or order for relief in respect of the Company in
an involuntary case or proceeding under the Title 11 of the United
States Code or any other similar Federal or State law or to the
commencement of any bankruptcy or insolvency case or proceeding
against the Company, or the filing by the
<PAGE> 46
39
Company of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by
the Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of the property of the Company, or the making by the
Company of an assignment for the benefit of creditors, or the
admission by the Company in writing of its inability to pay its debts
generally as they become due; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series (and, in the case of any series of
Securities held as trust assets of a Ford Motor Company Capital Trust and with
respect to which a Security Exchange has not theretofor occurred, such consent
of holders of the Preferred Securities and the Common Securities of such Ford
Motor Company Capital Trust as may be required under the Declaration of Trust
of such Ford Motor Company Capital Trust) may declare the principal amount (or,
if the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series (and, in the case of any
series of Securities held as trust assets of a Ford Motor Company Capital
Trust and with respect to which a Security Exchange has not theretofor
occurred, such consent of holders of the Preferred Securities and the Common
Securities of such Ford Motor Company Capital Trust as may be required under
the Declaration of Trust of such Ford Motor Company Capital Trust), by written
notice to the Company and the Trustee, may waive all defaults and rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any, on)
and any sinking fund payments with respect to any Securities
of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest
is enforceable under applicable law, interest upon overdue
interest to the date of such payment or deposit at the rate or
rates prescribed therefor in such Securities or, if no such
<PAGE> 47
40
rate or rates are so prescribed, at the rate borne by the Securities
during the period of such default, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities
of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such waiver or rescission and annulment shall affect any subsequent default
or impair any right consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that (1) in case default shall
be made in the payment of any installment of interest on any Security of any
series, as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (2) in case default shall be
made in the payment of the principal of (and premium, if any, on) any Security
of any series on its Maturity or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the Holders of such
Securities of such series, the whole amount that then shall have become due and
payable on all such Securities for principal (and premium, if any) or interest,
if any, or both, as the case may be, with interest upon the overdue principal
and (to the extent that payment of such interest is enforceable under
applicable law) upon overdue installments of interest at the rate borne by the
Securities during the period of such default; and, in addition thereto, such
further amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith.
In case the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor upon such Securities of such series and collect in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities of such series wherever situated the moneys adjudged or decreed to
be payable.
<PAGE> 48
41
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee, irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest, shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest, if any, owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession
of Securities. All rights of action and claims under this Indenture or the
Securities may be
<PAGE> 49
42
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money or
property collected by the Trustee pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.06;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest, if any, on the
Securities in respect of which or for the benefit of which such money
or property has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, if any,
respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors or assigns or to whosoever may be lawfully
entitled to receive the same, or as a court of competent jurisdiction
may direct.
SECTION 5.07. Limitation on Suits. No Holder of any Security
of any series or of any Coupon appertaining thereto shall have any right by
virtue or by availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise upon or
under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as herein before
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of all affected series then Outstanding
(treated as a single class) (and, in the case of any series of Securities held
as trust assets of a Ford Motor Company Capital Trust and with respect to which
a Security Exchange has not theretofore occurred, such consent of holders of
the Preferred Securities and the Common Securities of such Ford Motor Company
Capital Trust as may be required under the Declaration of Trust of such Ford
Motor Company Capital Trust), shall have made written request upon the Trustee
to institute such action or proceedings in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be
<PAGE> 50
43
incurred therein or thereby and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 5.12; it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security or Coupon with every other taker and Holder and the Trustee,
that no one or more Holders of Securities of any series or Coupons appertaining
to such Securities shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other such Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series and Coupons appertaining to such
Securities. For the protection and enforcement of the provisions of this
Section, each and every Holder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any,
on) and (subject to Section 3.07) interest, if any, on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption or repayment at the option of the Holder, on the Redemption Date or
Repayment Date, as the case may be) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy
<PAGE> 51
44
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. Control by Holders. The Holders of a majority
in aggregate principal amount of the Securities of all series affected (with
all such series voting as a single class) (and, in the case of any series of
Securities held as trust assets of a Ford Motor Company Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, such consent
of holders of the Preferred Securities and the Common Securities of such Ford
Motor Company Capital Trust as may be required under the Declaration of Trust
of such Ford Motor Company Capital Trust) at the time Outstanding shall have
the right to direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series by this
Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 6.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors,
the executive committee, or a trust committee of directors or responsible
officers of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forebearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the giving
of said direction, it being understood that (subject to Section 6.01) the
Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Holders.
SECTION 5.13. Waiver of Past Defaults. Prior to the
acceleration of the maturity of the Securities as provided in Section 5.02, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which an event of default shall
have occurred and be continuing (voting as a single class) (and, in the case of
any series of Securities held as trust assets of a Ford Motor Company Capital
Trust and with respect to which a Security Exchange has not theretofore
occurred, such
<PAGE> 52
45
consent of holders of the Preferred Securities and the Common Securities of
such Ford Motor Company Capital Trust as may be required under the Declaration
of Trust of such Ford Motor Company Capital Trust) may on behalf of the Holders
of all such Securities waive any past default or Event of Default described in
Section 5.01 and its consequences, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver, the Company,
the Trustee and the Holders of all such Securities of each series affected
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any, on)
or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit by mail to all Holders of Securities of such
series, as their names and addresses appear in the Security Register, notice of
such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in
<PAGE> 53
46
the payment of the principal of (or premium, if any, on) or interest, if any,
on any Security of such series or in the payment of any sinking fund instalment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series; and provided further that
in the case of any default of the character specified in Section 5.01(4) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default (not including periods of
grace, if any) with respect to Securities of such series.
SECTION 6.02. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness, approval
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors of the Company may
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proven or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel, and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
<PAGE> 54
47
(f) except during the continuance of an Event of Default,
the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
SECTION 6.03. Trustee Not Responsible for Recitals in
Indenture or in Securities. The recitals contained herein and in the
Securities, except the Trustee's certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof.
SECTION 6.04. May Hold Securities. The Trustee, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar or such other agent.
SECTION 6.05. Money Held in Trust. Subject to the provisions
of Section 4.04, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by law. The Trustee shall pay such interest on any moneys received by
it hereunder as it may agree with the Company to pay thereon. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on
any such
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moneys shall be paid from time to time upon the receipt of a Company Order with
respect thereto.
SECTION 6.06. Compensation and Reimbursement. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the Company and the Trustee shall
agree in writing for all services rendered by it hereunder (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust), and, except as otherwise expressly provided, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents, attorneys and counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. If any property
other than cash shall at any time be subject to a lien in favor of the Holders,
the Trustee, if and to the extent authorized by a receivership or bankruptcy
court of competent jurisdiction or by the supplemental instrument subjecting
such property to such lien, shall be entitled to make advances for the purpose
of preserving such property or of discharging tax liens or other prior liens or
encumbrances thereon. The Company also covenants to indemnify the Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee, arising out of or
in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee, as
such, except funds held in trust for the payment of principal of (or premium,
if any, on) or interest, if any, on the Securities.
SECTION 6.07. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $5,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in Section 6.08.
SECTION 6.08. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant
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49
to this Article shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of Section
6.09.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the
Company and by mailing notice thereof to the Holders of Securities of such one
or more series, as their names and addresses appear in the Security Register.
If the instrument of acceptance by a successor Trustee required by Section 6.09
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such one or more series, or any Holder who has been a bona
fide holder of a Security or Securities of such one or more series for at
least six months may, subject to the provisions of Section 5.14, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
Trustee.
(c) The Trustee may be removed and a successor Trustee
appointed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of
such series, delivered to the Trustee so removed, to the successor Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of TIA Section 310(b) after written request therefor by the Company or
by any Holder who has been a bona fide holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section
6.07 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee and appoint a successor Trustee with respect to all Securities, one
copy of which Board Resolution shall be delivered to the Trustee so removed and
one copy to the successor Trustee, or (ii) subject to TIA Section 315(e), any
Holder who has been a bona fide holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees. Such court
may thereupon,
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50
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.09. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.09, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.09, any Holder who has been a
bona fide holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
SECTION 6.09. Acceptance of Appointment by Successor. (a)
In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges pursuant to Section 6.06, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights,
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51
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and, upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
(e) Upon acceptance of appointment by a successor Trustee
as provided in this Section, the Company shall mail notice of the succession of
such Trustee hereunder to the Holders of the Securities of one or more or all
series, as the case may be, to which the appointment of such successor Trustee
relates as their names and addresses appear on the Security Register. If the
Company fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 6.10. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
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provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY
SECTION 7.01. Disclosure of Names and Addresses of Holders.
Each and every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Security Registrar nor any Paying Agent shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
SECTION 7.02. Reports by Trustee. On or before July 15,
1992, and on or before July 15 in every year thereafter, so long as required by
TIA Section 313(a), and so long as any Securities are Outstanding hereunder,
the Trustee shall transmit to the Holders, in the manner and to the extent
provided in TIA Section 313(c), and to the Company a brief report, dated as of
the preceding May 15 and required by TIA Section 313(a).
SECTION 7.03. Reports by Company. (a) The Company covenants
and agrees to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant
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to either of such Sections, then to file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional information,
documents, and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to the
Holders within 30 days after the filing thereof with the Trustee, in the manner
and to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company pursuant
to Subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Consolidations and Mergers of Company and
Conveyances Permitted Subject to Certain Conditions. Nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of the Company into any other corporation or corporations (whether or not
affiliated with the Company), or successive consolidations or mergers to which
the Company or its respective successor or successors shall be a party or
parties, or shall prevent any sale, lease or conveyance of the property of the
Company as an entirety or substantially as an entirety; provided, that upon any
such consolidation, merger, sale, lease or conveyance to which the Company is a
party and in which the Company is not the surviving corporation, the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company and the due and
punctual payment of the principal of and interest on all of the Securities,
according to their tenor, shall be expressly assumed by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the corporation formed by such consolidation, or into which the Company shall
have been merged, or which shall have acquired such property.
SECTION 8.02. Successor Corporation Substituted. In case of
any such consolidation, merger, sale or conveyance, and following such an
assumption by the successor
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corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein. Such
successor corporation may cause to be signed, and may issue either in its own
name or in the name of the Company prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Securities or Coupons thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Company or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this Indenture and
the Securities and may be liquidated and dissolved.
SECTION 8.03. Opinion of Counsel to Trustee. The Trustee,
subject to the provisions of Sections 6.01 and 6.02, may receive an Opinion of
Counsel, prepared in accordance with Section 1.02, as conclusive evidence that
any such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. The Company, when authorized by a Board Resolution and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of the execution thereof) for one
or more of the following purposes:
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(1) to evidence the succession of another corporation to
the Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Article Eight hereof;
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company;
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and
if such Events of Default are to be for the benefit of less than all
series of Securities, stating that such Events of Default are expressly
being included solely for the benefit of such series); provided,
however, that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in (i) bearer form, registrable or not
registrable as to principal, and/or (ii) coupon form, registrable or
not registrable as to principal, and to provide for exchangeability of
such Securities with Securities issued hereunder in fully registered
form;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Security of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision;
(6) to secure the Securities pursuant to the requirements
of Section 8.03 or otherwise;
(7) to establish the form or terms of Securities of any
series thereof as permitted by Sections 2.01 and 3.01;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to
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or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.09(b); and
(9) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
defective or inconsistent with any other provision herein or in any
supplemental indenture, or to make such other provisions with respect
to matters or questions arising under this Indenture, provided that
such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder.
Any supplemental indenture authorized by the provisions of
this Section 9.01 may be executed by the Company and the Trustee without the
consent of the Holders of any of the Outstanding Securities, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures With Consent of
Holders. With the consent (evidenced as provided in Section 1.04) of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class) (and, in the case of any series of Securities
held as trust assets of a Ford Motor Company Capital Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of holders
of the Preferred Securities and the Common Securities of such Ford Motor
Company Capital Trust as may be required under the Declaration of Trust of such
Ford Motor Company Capital Trust), the Company, when authorized by a Board
Resolution (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Company Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of each such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture shall (a) extend the
final maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon (except that
a valid extension of an interest payment period by the Company in accordance
with the terms of any indenture supplemental hereto, shall not constitute an
extension of interest for this purpose), or reduce any amount payable on
redemption thereof or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or
currency other than that
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provided in the Securities and Coupons or in accordance with the terms thereof,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.02 or the amount thereof provable in bankruptcy
pursuant to Sections 5.03 and 5.04 or impair or affect the right of any Holder
to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment at the option of the Holder in each case
without the consent of the Holder of each Security so affected (and, in the
case of any series of Securities held as trust assets of a Ford Motor Company
Capital Trust and with respect to which a Security Exchange has not theretofore
occurred, such consent of holders of the Preferred Securities and the Common
Securities of such Ford Motor Company Capital Trust as may be required under
the Declaration of Trust of such Ford Motor Company Capital Trust), or (b)
reduce the aforesaid percentage in principal amount of Securities of any
series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or of the Coupons appertaining to
such Securities.
Upon the request of the Company, accompanied by a copy of a
Board Resolution (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to a Company Order) certified by the
secretary or an assistant secretary of the Company authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Holders as aforesaid and other documents, if any,
required by Sections 1.04 and 9.03, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first class mail to such Holders at their addresses as
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they shall appear on the Security Register, (ii) if any unregistered Securities
of a series affected thereby are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act of 1939, by mailing a notice thereof by
first class mail to such Holders at such addresses as were so furnished to the
Trustee and (iii) if any unregistered Securities of a series affected thereby
are then Outstanding, to all Holders thereof, by publication of a notice
thereof at least one in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and at least once in an authorized newspaper in London,
and in each case such notice shall set forth in general terms the substance of
such supplemental indenture. Any failure of the Company to give such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article, this Indenture shall be and be deemed to be modified and amended in
accordance therewith, and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the Holders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.05. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and such Securities may be
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
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ARTICLE TEN
PARTICULAR COVENANTS OF THE COMPANY
SECTION 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay or cause to be paid the principal of (and
premium, if any, on) and interest, if any, on the Securities of that series in
accordance with the terms of the Securities and this Indenture. Each
installment of interest on any Security may at the Company's option be paid by
mailing a check for such interest, payable to or upon the written order of the
Person entitled thereto pursuant to Section 3.07, to the address of such Person
as it appears on the Security Register or by wire transfer to an account of the
Person entitled thereto as such account shall be provided to the Security
Registrar and shall appear on the Security Register. At the option of the
Company, all payments of principal may be paid by official bank check to the
registered Holder of the Security or other person entitled thereto against
surrender of such Security.
SECTION 10.02. Maintenance of Office or Agency. The Company
will maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange as in this Indenture provided and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give notice to the Trustee of
the location, and any change in the location, of each such office or agency.
In case the Company shall fail to maintain any such required office or agency
or shall fail to give notice of the location or of any change thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee. The Company hereby initially appoints
the Trustee as its office or agency for each of said purposes.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 10.03. Money for Securities Payments to be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (or premium, if any, on) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the
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benefit of the Persons entitled thereto a sum sufficient to pay the principal
(or premium, if any) or interest, if any, so becoming due. The Company will
promptly notify the Trustee of any failure to take such action or the failure
by any other obligor on the Securities to make any payment of the principal of
or interest on the Securities when the same shall be due and payable.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
(or premium, if any, on) or interest, if any, on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (or premium,
if any) or interest, if any, so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities, other than the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (or premium, if any, on) or interest on Securities of
that series (whether such sums have been paid to it by the Company or
by any other obligor on the Securities) in trust for the benefit of
the Persons entitled thereto;
(2) give the Trustee notice of any failure by the Company
(or any other obligor upon the Securities of that series) to make any
payment of principal of (or premium, if any, on) or interest on the
Securities of that series when the same shall be due and payable; and
(3) at any time during the continuance of any Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
Anything in this Section to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining satisfaction and
discharge of this Indenture, or for any other reason, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
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SECTION 10.04. Statement by Officers as to Default. The
Company will deliver to the Trustee, on or before a date not more than four
months after the end of each fiscal year of the Company ending after the date
hereof, a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his knowledge of the
Company's compliance with all conditions and covenants hereof, and, if the
Company shall be in default, specifying all such defaults and the nature
thereof of which he may have knowledge. For purposes of this Section 10.04
such compliance shall be determined without regard to any period of grace or
requirement of notice hereunder.
SECTION 10.05. Further Instruments and Acts. The Company
will, upon request of the Trustee, execute and deliver such further instruments
and do such further acts as may reasonably be necessary or proper to carry out
more effectually the purposes of this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee. The
right of the Company to elect to redeem any Securities of any series shall be
set forth in the terms of such Securities of such series established in
accordance with Section 3.01. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed and shall deliver to the Trustee such documentation and records
as shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 11.03. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 11.03. Selection by Trustee of Securities to be
Redeemed. If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 45
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as may be specified by the terms of such Securities or, if no such method is
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so specified, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions of the principal
amount of Securities of such series; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of such Security
not redeemed to less than the minimum authorized denomination for Securities of
that series.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 11.04. Notice of Redemption. Notice of redemption
shall be given by the Company or, at the Company's request, by the Trustee to
the Holders of the Securities to be redeemed, by first-class mail, postage
prepaid, mailed not less than 10 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
SECTION 11.05. Deposit of Redemption Price. On or before any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company
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is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.03) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Regular Record Dates according to
their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid
upon surrender therefor, the Redemption Price shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 11.07. Securities Redeemed in Part. Any Security
which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to, the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
REPAYMENT AT OPTION OF HOLDERS
SECTION 12.01. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 3.01 for Securities
of any series) in accordance with this Article.
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SECTION 12.02. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest
thereon accrued to the Repayment Date specified in the terms of such
Securities. The Company covenants that on or before the Repayment Date the
Company will deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest, if any, on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
SECTION 12.03. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. To be
repaid at the option of the Holder, any Security so providing for such
repayment, with the "Option to Elect Repayment" form on the reverse of such
Security duly completed by the Holder, must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 30 days nor later than 15 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of $1,000 unless
otherwise specified in the terms of such Security, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the
Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 12.04. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and
on and after such Repayment Date (unless the Company shall default in the
payment of such Securities on such Repayment Date) interest on such Securities
or the portions thereof, as the case may be, shall cease to accrue.
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SECTION 12.05. Securities Repaid in Part. Upon surrender of
any Security which is to be repaid in part only, the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Company, a new Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. The Company may (1) deliver to the Trustee Outstanding Securities
of a series (other than any previously called for redemption) theretofore
purchased or otherwise acquired by the Company and (2) receive credit for
Securities of a series which have been previously delivered to the Trustee by
the Company or for Securities of a series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such Series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
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SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering or crediting Securities of that series pursuant to
Section 13.02 (which Securities will, if not previously delivered, accompany
such certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 13.02 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
Not more than 60 days before each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 11.06 and 11.07.
Prior to any sinking fund payment date, the Company shall pay
to the Trustee in cash a sum equal to any interest accrued to the date fixed
for redemption of Securities or portions thereof to be redeemed on such sinking
fund payment date pursuant to this Section 13.03.
ARTICLE FOURTEEN
SUBORDINATION
SECTION 14.01. Subordination. The Company, for itself, its
successors and assigns, covenants and agrees, and each holder of a Security, by
its acceptance thereof, likewise covenants and agrees, that the payment of the
principal of, premium, if any, and interest on, each and all of the Securities
is hereby expressly subordinated, to the extent and in the manner hereinafter
in this Article Fourteen set forth, in right of payment to the prior payment in
full of all Senior Obligations.
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SECTION 14.02. Rights of Holders of Senior Obligations. (a)
In the event of any insolvency or bankruptcy proceedings, and any receivership,
liquidation, reorganization or other similar proceedings in connection
therewith, relative to the Company or to its creditors, as such, or to its
property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Company, whether or not involving
insolvency or bankruptcy, and in the event of any execution sale, then the
holders of Senior Obligations shall be entitled to receive payment in full of
principal thereof and interest due thereon (including without limitation,
except to the extent, if any, prohibited by mandatory provisions of law, post
petition interest in any such proceedings) in money of all Senior Obligations
before the holders of Securities are entitled to receive any payment on account
of the principal of or interest on the indebtedness evidenced by the
Securities, and to that end the holders of Senior Obligations shall be entitled
to receive for application in payment thereof any payment or distribution of
any kind or character, whether in cash or property or securities, which may be
payable or deliverable in connection with any such proceedings or sale in
respect of the principal of or interest on the Securities other than securities
of the Company as reorganized or readjusted or securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in this
Article Fourteen with respect to the Securities, to the payment of all
indebtedness of the nature of Senior Obligations, provided that the rights of
the holders of the Senior Obligations are not altered by such reorganization or
readjustment;
(b) In the event and during the continuation of any default in
payment of any Senior Obligations or if any event of default, as therein
defined, shall exist under any Senior Obligations or any agreement pursuant to
which any Senior Obligations is issued, no payment of the principal of, premium
if any, or interest on the Securities shall be made and the Company covenants
that it will, upon ascertaining any such default or event of default, provide
written notice to the Trustee of such default or event of default;
(c) In the event that the Securities of any series are declared
due and payable before their expressed maturity because of the occurrence of an
Event of Default (under circumstances when the provisions of subsection(a) of
this Section 14.02 shall not be applicable), the holders of all Senior
Obligations shall be entitled to receive payment in full in money of such
Senior Obligations before such holders of Securities are entitled to receive
any payment on account of the principal of or interest on the Securities; and
(d) No holder of Senior Obligations shall be prejudiced in his
right to enforce subordination of the Securities by any act or failure to act
on the part of the Company.
SECTION 14.03. Payments and Distributions. In the event that,
notwithstanding the provisions of Section 14.02, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as reorganized or readjusted
or securities of the Company or any
<PAGE> 75
68
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in this
Article Fourteen with respect to the Securities, to the payment of all
indebtedness of the nature of Senior Obligations, provided that the rights of
the holders of the Senior Obligations are not altered by such reorganization or
readjustment) shall be received by the holders or by the Trustee for their
benefit in connection with any proceedings or sale referred to in subsection
(a) of Section 14.02 before all Senior Obligations is paid in full in money,
such payment or distribution shall be paid over to the holders of such Senior
Obligations or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Obligations may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Senior Obligations held or
represented by each, for application to the payment of all Senior Obligations
remaining unpaid until all such Senior Obligations shall have been paid in full
in money, after giving effect to any concurrent payment or distribution to the
holders of such Senior Obligations.
From and after the payment in full in money of all Senior
Obligations, the holders of Securities (together with the holders of any other
indebtedness of the Company which is subordinate in right of payment to the
payment in full of all Senior Obligations, which is not subordinate in right of
payment to the Securities and which by its terms grants such right of
subrogation to the holder thereof) shall be subrogated to the rights of the
holders of Senior Obligations to receive payments or distributions of assets or
securities of the Company applicable to the Senior Obligations until the
Securities shall be paid in full, and, for the purposes of such subrogation, no
such payments or distributions to the holders of Senior Obligations of assets
or securities, which otherwise would have been payable or distributable to
holders of Securities, shall, as between the Company, its creditors other than
the holders of Senior Obligations, and the holders, be deemed to be a payment
by the Company to or on account of the Senior Obligations, it being understood
that the provisions of this Article Fourteen are and are intended solely for
the purpose of defining the relative rights of the holders, on the one hand,
and the holders of the Senior Obligations, on the other hand, and nothing
contained in this Article Fourteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair as between the Company, its creditors
other than the holders of Senior Obligations, and the holders, the obligation
of the Company, which is unconditional and absolute, to pay to the holders the
principal of and interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or to affect the relative
rights of the holders and creditors of the Company other than the holders of
the Senior Obligations, nor shall anything herein or therein prevent the
Trustee or the holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture subject to the
rights of the holders of Senior Obligations, under Section 14.02, to receive
cash, property or securities of the Company otherwise payable or deliverable to
the holders of the Securities.
<PAGE> 76
69
Upon any distribution or payment in connection with any
proceedings or sale referred to in subsection (a) of Section 14.02, the
Trustee, subject as between the Trustee and the holders to the provisions of
Section 1.04 hereof, shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other person making any distribution or payment
to the Trustee for the purpose of ascertaining the holders of Senior
Obligations entitled to participate in such payment or distribution, the amount
of such Senior Obligations or the amount payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article Fourteen. In the event that the Trustee determines, in good faith, that
further evidence is required with respect to the right of any person as a
holder of Senior Obligations to participate in any payment or distribution
pursuant to this Section 14.03, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Obligations held by such person, as to the extent to which such person
is entitled to participate in such payment or distribution, and as to other
facts pertinent to the rights of such person under this Section 14.03, and if
such evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to receive
such payment.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Obligations, and shall not be liable to any such
holders if it shall in good faith pay over or distribute to holders of
Securities or the Company or any other person moneys or assets to which any
holders of Senior Obligations shall be entitled by virtue of Article Fourteen
of this Indenture or otherwise.
SECTION 14.04. Payments by the Company. Nothing contained in
this Article Fourteen or elsewhere in this Indenture, or in any of the
Securities, shall prevent at any time, (a) the Company from making payments at
any time of principal of or interest on the Securities, except under the
conditions described in Section 14.02 or during the pendency of any proceedings
or sale therein referred to, provided, however, that payments of principal of
or interest on the Securities shall only be made by the Company within three
business days of the due dates for such payments or (b) the application by the
Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of or interest on the Securities, if at the time of
such deposit the Trustee did not have written notice in accordance with Section
14.06 of any event prohibiting the making of such deposit by the Company or if
in the event of redemption, the Trustee did not have such written notice prior
to the time that the notice of redemption pursuant to Section 11.04 was given
(which notice of redemption shall in no event be given more than 60 days prior
to the date fixed for redemption).
SECTION 14.05. Appointment of the Trustee by Holders. Each
Holder by his acceptance of a Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination as provided in this Article
Fourteen and appoints the Trustee as attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding up, liquidation
or
<PAGE> 77
70
reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company, the immediate filing of a claim for the unpaid balance of such
Holder's Securities in the form required in said proceedings and cause said
claim to be approved.
SECTION 14.06. Notice to Trustee. Notwithstanding the
provisions of this Article Fourteen or any other provisions of this Indenture,
the Trustee shall not be charged with the knowledge of the existence of any
facts which would prohibit the making of any payment of moneys to the Trustee,
unless and until the Trustee shall have received written notice thereof from
the Company or from the holder or the representative of any class of Senior
Obligations; provided, however, that if at least two business days prior to the
date upon which by the terms hereof any such monies may become payable for any
purpose (including, without limitation, the payment of either the cash amount
payable at maturity or interest on any Security) the Trustee shall not have
received with respect to such monies the notice provided for in this Section
14.06, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary, which may be received by it on or after such two
business days prior to such date.
SECTION 14.07. Rights of Trustee. The Trustee shall be
entitled to all the rights set forth in this Article Fourteen with respect to
any Senior Obligations which may at any time be held by it, to the same extent
as any other holder of Senior Obligations.
SECTION 14.08. Paying Agent. In case at any time any paying
agent other than the Trustee shall be appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article Fourteen shall in
such case (unless the context shall otherwise require) be construed as
extending to and including such paying agent within its meaning as fully for
all intents and purposes as if such paying agent were named in this Article
Fourteen in place of the Trustee.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
SECTION 15.01. Exemption from Individual Liability. No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer, director
or employee, as such, past, present or future, of the Company or
<PAGE> 78
71
of any successor corporation, either directly or through the Company, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, stockholders, officers,
directors or employees, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director or employee,
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of such Securities.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01. Successors and Assigns of Company Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company shall bind its respective
successors and assigns, whether so expressed or not.
SECTION 16.02. Acts of Board, Committee or Officer of
Successor Corporation Valid. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any
corporation that shall at that time be the successor of the Company.
SECTION 16.03. Required Notices or Demands. Any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Holders to or on the Company may,
except as otherwise provided in Section 5.01(4), be given or served by being
deposited postage prepaid in a post office letter box in the United States
addressed (until another address is filed by the Company with the Trustee), as
follows: to the Company, Ford Motor Company, The American Road, Dearborn,
Michigan 48121, Attention: Treasurer. Any notice, direction, request or demand
by the Company or by any Holder to or upon the Trustee may be given or made,
for all purposes, by being deposited postage prepaid in a post office letter
box in the United States addressed to the Corporate Trust Office of the
Trustee. Any notice required or permitted to be mailed to a
<PAGE> 79
72
Holder by the Company or the Trustee pursuant to the provisions of this
Indenture shall be deemed to be properly mailed by being deposited postage
prepaid in a post office letter box in the United States addressed to such
Holder at the address of such Holder as shown on the Security Register. In any
case, where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impractical to mail notice of any event to
Holders when such notice is required to be given pursuant to any provision of
this Indenture, then any manner of giving such notice as shall be satisfactory
to the Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 16.04. Indenture and Securities to be Construed in
Accordance with the Laws of the State of New York. This Indenture and each
Security shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be governed by and construed in accordance
with the laws of said State.
SECTION 16.05. Indenture May be Executed in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but all of which shall together constitute one and the
same instrument.
[_______________] hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
<PAGE> 80
73
IN WITNESS WHEREOF, FORD MOTOR COMPANY has caused this
Indenture to be duly signed and acknowledged by its Chairman of the Board or
its President or an Executive Vice President or a Vice President or its
Treasurer or its Assistant Treasurer or its Secretary or its Assistant
Secretary thereunto duly authorized, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or an Assistant
Secretary; and [____________] has caused this Indenture to be duly signed and
acknowledged by one of its Vice Presidents or Assistant Vice Presidents
thereunto duly authorized, and its corporate seal to be affixed hereunto, and
the same to be attested by one of its Assistant Treasurers.
FORD MOTOR COMPANY
By__________________________
Name:
Title:
Attest: __________________________
[___________________]
By__________________________
Name:
Title:
Attest: _________________________
<PAGE> 81
74
IN WITNESS WHEREOF, FORD MOTOR COMPANY has caused this
Indenture to be duly signed and acknowledged by its Chairman of the Board or
its President or an Executive Vice President or a Vice President or its
Treasurer or its Assistant Treasurer or its Secretary or its Assistant
Secretary thereunto duly authorized, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or an Assistant
Secretary; and [_________________] has caused this Indenture to be duly signed
and acknowledged by one of its Vice Presidents or Assistant Vice Presidents
thereunto duly authorized, and its corporate seal to be affixed hereunto, and
the same to be attested by one of its Assistant Treasurers.
FORD MOTOR COMPANY
By___________________________
Name:
Title:
Attest: __________________________
[___________________]
By___________________________
Name:
Title:
Attest: _________________________
<PAGE> 82
STATE OF MICHIGAN )
) ss.:
COUNTY OF WAYNE )
On this _________ day of __________________ , 1995, before me
personally came ________________, to me known, who, being by me duly sworn, did
depose and say that he resides at ________________________________, that he
is ______________________________ of FORD MOTOR COMPANY, one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
________________________________
<PAGE> 83
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this _________ day of __________________, 1995, before me
personally came _________________________________, to me known, who, being by
me duly sworn, did depose and say that he resides at _______________________,
that he is __________________________________________
of [____________________], one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
________________________________
<PAGE> 1
Exhibit 4.3
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of September 19, 1995, between Ford
Motor Company, a Delaware corporation, as Sponsor, and The Bank of New York, a
New York banking corporation, and The Bank of New York (Delaware), a Delaware
banking corporation, as Trustees. The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "Ford Motor Company
Capital Trust I", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Sec. 3801 et seq. (the "Business Trust Act"),
and that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate
of trust with the Delaware Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form to be included as Exhibit 4.5 to the Registration
Statement referred to below, to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) a Registration Statement on Form S-4 (the "Registration
Statement") and any pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act
of 1933, as amended, of the Preferred Securities of the Trust, (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12(b)
of the Securities Exchange Act of 1934, as amended and (c) an Issuer Tender
Offer Statement on Schedule 13E-4 and any other tender offer statement required
to be filed by the Trust with the Commission (including, if necessary, Schedule
14D-1) relating to the exchange offer (the "Offer") described in the
Registration Statement (collectively, the "Tender Offer Schedules") and any
amendment or supplement thereto; (ii) to file with the New York Stock Exchange
and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on the New York Stock Exchange; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds,
<PAGE> 2
irrevocable consents, appointments of attorneys for service of process and
other papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (iv) to execute on behalf of the Trust that certain Dealer
Manager Agreement among the Trust, the Sponsor and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Dean Witter Reynolds, Inc., A. G. Edwards & Sons,
Inc., Goldman, Sachs & Co., Lehman Brothers, PaineWebber Incorporated and Smith
Barney Inc. relating to the Offer, substantially in the form to be included as
Exhibit 1 to the Registration Statement. In the event that any filing referred
to in clauses (i)-(iii) above is required by the rules and regulations of the
Commission, the New York Stock Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by the Trustees, the Sponsor is hereby
authorized and directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that The Bank of
New York and The Bank of New York (Delaware), in their capacities as Trustees
of the Trust shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the New York Stock Exchange or state securities
or blue sky laws. In connection with all of the foregoing, the Sponsor and each
Trustee, solely in its capacity as Trustee of the Trust, hereby constitutes and
appoints John M. Rintamaki, as his, her or its, as the case may be, true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Sponsor or such Trustee or in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the Registration Statement,
the 1934 Act Registration Statement and the Tender Offer Schedules and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Sponsor or such Trustee might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be two (2) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase
or decrease the number of Trustees; provided that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty days prior notice to
the Sponsor.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
FORD MOTOR COMPANY,
as Sponsor
By: /s/ Peter J. Sherry, Jr.
------------------------------
Name: Peter J. Sherry, Jr.
Title: Assistant Secretary
2
<PAGE> 3
THE BANK OF NEW YORK,
as Trustee
By: /s/ Mary Jane Morrissey
------------------------------
Name: Mary Jane Morrissey
Title: Assistant Vice President
THE BANK OF NEW YORK (Delaware),
as Trustee
By: /s/ Joseph F. Leary
------------------------------
Name: Joseph F. Leary
Title: Vice President
3
<PAGE> 1
Exhibit 4.4
CERTIFICATE OF TRUST
OF
FORD MOTOR COMPANY CAPITAL TRUST I
This Certificate of Trust of Ford Motor Company Capital Trust I (the
"Trust"), dated September 19, 1995, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del.C. Sec. 3801 et seq.).
1. Name. The name of the business trust formed hereby is Ford
Motor Company Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is The
Bank of New York (Delaware), a Delaware banking corporation, White Clay Center,
Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK,
as trustee
By: /s/ Mary Jane Morrissey
--------------------------------
Name: Mary Jane Morrissey
Title: Assistant Vice President
THE BANK OF NEW YORK (Delaware),
as trustee
By: /s/ Joseph F. Leary
--------------------------------
Name: Joseph F. Leary
Title: Vice President
<PAGE> 1
Draft 9/19/95
Exhibit 4.5
AMENDED AND RESTATED
DECLARATION OF TRUST
of
Ford Motor Company Capital Trust I
September __, 1995
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of September __, 1995 by the undersigned trustees (together with
all other Persons from time to time duly appointed and serving as trustees in
accordance with the provisions of this Declaration, the "Trustees"), Ford Motor
Company, a Delaware corporation, as trust sponsor ("Ford" or the "Sponsor"),
and by the holders, from time to time, of undivided beneficial interests in the
assets of the Trust to be issued pursuant to this Declaration.
WHEREAS, the Sponsor and the Trustees entered into a Declaration of
Trust dated as of September 19, 1995 (the "Original Declaration") in order to
establish a statutory business trust (the "Trust") under the Business Trust Act
(as hereinafter defined);
WHEREAS, the Certificate of Trust (the "Certificate of Trust") of the
Trust was filed with the office of the Secretary of State of the State of
Delaware on September 19, 1995;
WHEREAS, the Trustees and the Sponsor desire to continue the Trust
pursuant to the Business Trust Act for the purpose of, as described more fully
in Section 3.3 hereof, (i) issuing Preferred Securities (as defined herein)
representing undivided beneficial interests in the assets of the Trust in
exchange for Series B Depositary Shares ("Depositary Shares") each representing
1/2000 of a share of Series B Preferred Stock (as hereinafter defined) of Ford
pursuant to the Offer (as hereinafter defined) and delivering such Depositary
Shares to Ford in consideration for the deposit by Ford as trust assets of
Debentures (as hereinafter defined) of Ford issued under the Indenture (as
hereinafter defined) and (ii) issuing and selling Common Securities (as defined
herein) representing undivided beneficial interests in the assets of the Trust
to Ford in exchange for cash and investing the proceeds thereof in additional
Debentures of Ford issued under the Indenture to be held as assets of the
Trust; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act, that the
Original Declaration be amended and restated in its entirety as provided herein
and that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets referred to in clauses (i) and (ii)
of the previous Whereas clause contributed to or purchased by the Trust will be
held in trust for the benefit of the Holders (as defined herein) from time to
time, of the Certificates (as defined
<PAGE> 2
herein) representing undivided beneficial interests in the assets of the Trust
issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Amended and Restated Declaration of Trust (including Exhibits A, B and C
hereto (the "Exhibits")) as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Book Entry Interest" means a beneficial interest in a Certificate
registered in the name of a Clearing Agency or a nominee thereof, ownership and
transfers of which shall be maintained and made through book entries by such
Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Sec. 3801 et seq., as it may be amended from time to time.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Certificate of Trust" has the meaning set forth in the second Whereas
clause above.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as
depository for the Preferred Securities and in whose name or in the name of a
nominee of that organization, shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of the
Preferred Securities.
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"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with
the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time or any successor legislation. A reference to a specific section
((Sec.)) of the Code refers not only to such specific section but also to any
corresponding provision of any federal tax statute enacted after the date of
this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1(b).
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex I to Exhibit C.
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or its
Affiliates, (ii) any officer, director, shareholder, employees, representatives
or agents of Ford or its Affiliates and (iii) the Holders from time to time of
the Securities.
"Dealer Manager Agreement" means the dealer manager agreement entered
into among Ford, the Trust and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Dean Witter Reynolds Inc., A.G. Edwards & Sons, Inc., Goldman,
Sachs & Co., Lehman Brothers, PaineWebber Incorporated and Smith Barney Inc.
with respect to, among other things, the Offer and the Preferred Securities.
"Debenture Trustee" means The Bank of New York, as trustee under the
Indenture until a successor is appointed thereunder and thereafter means such
successor trustee.
"Debentures" means the series of Junior Subordinated Debentures issued
by Ford under the Indenture to the Trust and entitled the "_____% Junior
Subordinated Debentures due 2025".
"Delaware Trustee" has the meaning set forth in Section 5.1(a)(3).
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Expiration Date" has the meaning set forth in the Prospectus.
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"Fiscal Year" has the meaning specified in Section 11.1.
"Ford Motor Company Capital Trust" shall mean any statutory business
trust created under the laws of the State of Delaware specified in the
applicable board resolution or supplemental indenture establishing a particular
series of Securities pursuant to Section 2.3 of the Indenture.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means any Trustee, any Affiliate of any Trustee,
any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the Trust
or its Affiliates.
"Indenture" means the Indenture dated as of _____, 1995 between Ford
and the Debenture Trustee and the First Supplemental Indenture thereto dated
such date pursuant to which the Debentures are to be issued.
"Indenture Event of Default" means any event or condition defined as
an "Event of Default" with respect to the Debentures under Section 5.1 of the
Indenture has occurred and is continuing.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.1(c) and having the duties set forth for
the Institutional Trustee herein.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time or any successor legislation.
"Legal Action" has the meaning specified in Section 3.6(g).
"Liquidation Distribution" has the meaning set forth in Exhibits B and
C hereto establishing the terms of the Securities.
"Majority in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
represents more than 50% of the liquidation amount of all outstanding
Securities of such class.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Exhibits B and C hereto.
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"Offer" means the offer by the Trust to exchange Preferred Securities
of the Trust for outstanding Depositary Shares of Ford in consideration for the
deposit by Ford as trust assets of Debentures issued under the Indenture, all
as described in the Prospectus.
"Original Declaration" has the meaning set forth in the first Whereas
clause above.
"Paying Agent" has the meaning specified in Section 3.8(g).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Guarantee" means the Guarantee Agreement to be dated as of
______, 1995 of Ford in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1(b).
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive certificate in
fully registered form representing a Preferred Security substantially in the
form of Annex I to Exhibit B.
"Prospectus" means the Prospectus dated ______, 1995 relating to the
Offer.
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Institutional
Trustee and the Delaware Trustee.
"Related Party" means any direct or indirect wholly owned subsidiary
of Ford or any other Person which owns, directly or indirectly, 100% of the
outstanding voting securities of Ford.
"Resignation Request" has the meaning specified in Section 5.2(d).
"Responsible Officer" means, with respect to the Institutional
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Institutional Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
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"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any
successor rule thereunder.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time or any successor legislation.
"Series B Preferred Stock" means the Series B Cumulative Preferred
Stock of Ford.
"Special Event" has the meaning set forth in the terms of the
Securities as set forth in Exhibits B and C hereto.
"Sponsor" or "Ford" means Ford Motor Company, a Delaware corporation,
or any successor entity in a merger, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section
5.2(b)(ii).
"Successor Institutional Trustee" means a successor Trustee possessing
the qualifications to act as Institutional Trustee under Section 5.1(c).
"10% in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities,
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
represents 10% or more of the liquidation amount of all outstanding Securities
of such class.
"Treasury Regulations" means the income tax regulations including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to
the extent applicable, be governed by such provisions;
(b) if and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Secs. 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control;
(c) the Institutional Trustee, to the extent permitted by applicable
law and/or the rules and regulations of the Commission, shall be the only
Trustee which is a trustee for the purposes of the Trust Indenture Act; and
(d) the application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Institutional Trustee with such information as is
required under Sec. 312(a) of the Trust Indenture Act at the times and in the
manner provided in Sec. 312(a); and
(b) the Institutional Trustee shall comply with its obligations under
Secs. 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
Within 60 days after May 15 of each year, the Institutional Trustee
shall provide to the Holders of the Securities such reports as are required by
Sec. 313 of the Trust Indenture Act, if any, in the form, in the manner and at
the times provided by Sec. 313 of the Trust Indenture Act. The Institutional
Trustee shall also comply with the requirements of Sec. 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Institutional Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee, the Commission and the Holders of
the Securities, as applicable, such documents, reports and information as
required by Sec. 314(a)(1)-(3) (if any) of the Trust Indenture Act and the
compliance certificates required by Sec. 314(a)(4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Sec. 314(a)(4) and (c) of the Trust Indenture Act
(provided that any certificate to be provided pursuant to Sec. 314(a)(4) of the
Trust Indenture Act shall be provided within 120 days of the end of each Fiscal
Year).
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SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration which relate to
any of the matters set forth in Sec. 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given pursuant to Sec. 314(c) shall
comply with Sec. 314(e) of the Trust Indenture Act.
SECTION 2.6 Events of Default; Waiver
(a) Subject to Section 2.6(c), Holders of Preferred Securities may by
vote of at least a Majority in liquidation amount of the Preferred Securities
(A) in accordance with the terms of the Preferred Securities, direct the time,
method and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee or (B) on behalf of the Holders of all Preferred
Securities waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that if the Event of Default arises
out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable; or
(ii) which requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority
in principal amount of the Debentures, or (2) each holder of
Debentures, the Event of Default under this Declaration may only be
waived by, in the case of clause (1) above, the vote of Holders of
Preferred Securities representing such specified percentage of the
aggregate liquidation amount of the Preferred Securities, or, in the
case of clause (2) above, each Holder of Preferred Securities.
Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Preferred Securities or impair any right consequent thereon.
(b) Subject to Section 2.6(c), Holders of Common Securities may by
vote of at least a Majority in liquidation amount of the Common Securities, (A)
in accordance with the terms of the Common Securities, direct the time, method
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee or (B) on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the Event of Default arises
out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived such
Event of Default under the Declaration as provided below, the Event of
Default under this Declaration shall also not be waivable; or
(ii) which requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority
in principal amount of the Debentures or (2) each holder of
Debentures, except where the holders of the Common Securities are
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deemed to have waived such Event of Default under this Declaration as
provided below, the Event of Default under this Declaration may
only be waived by, in the case of clause (1) above, the vote of
Holders of Common Securities representing such specified percentage of
the aggregate liquidation amount of the Common Securities, or, in the
case of clause (2) above, each holder of Common Securities; and
provided, further that, each Holder of Common Securities will be deemed to have
waived any Event of Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the Preferred
Securities have been cured, waived by the Holders of Preferred Securities as
provided in this Declaration or otherwise eliminated and until all Events of
Default with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Institutional Trustee will be deemed to be acting
solely on behalf of the Holders of the Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the
Institutional Trustee in accordance with the terms of this Declaration or the
Securities. If any Event of Default with respect to the Preferred Securities is
waived by the Holders of Preferred Securities as provided in this Declaration,
the Holders of Common Securities agree that such waiver shall also constitute
the waiver of such Event of Default with respect to the Common Securities for
all purposes under this Declaration without any further act, vote or consent of
the Holders of the Common Securities. Subject to the foregoing provisions of
this Section 2.6(b), upon such waiver, any such default shall cease to exist
and any Event of Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) The right of any Holder of Securities to receive payment of
Distributions on the Securities in accordance with this Declaration and the
terms of the Securities set forth in Exhibits B and C on or after the
respective payment dates therefor, or to institute suit for the enforcement of
any such payment on or after such payment dates, shall not be impaired without
the consent of each such Holder.
(d) As provided in the terms of the Securities set forth in Exhibits B
and C hereto, a waiver of an Indenture Event of Default by the Institutional
Trustee at the written direction of the Holders of the Preferred Securities
constitutes a waiver of the corresponding Event of Default under this
Declaration in respect of the Securities.
SECTION 2.7 Disclosure of Information
The disclosure of information as to the names and addresses of the
Holders of the Securities in accordance with Sec. 312 of the Trust Indenture
Act, regardless of the source from which such information was derived, shall
not be deemed to be a violation of any existing law, or any law hereafter
enacted which does not specifically refer to Sec. 312 of the Trust Indenture
Act, nor shall the Institutional Trustee be held accountable by reason of
mailing any material pursuant to a request made under Sec. 312(b) of the Trust
Indenture Act.
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ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "Ford Motor Company
Capital Trust I" as such name may be modified from time to time by the Regular
Trustees following written notice to the Holders of Securities. The Trust's
activities may be conducted under the name of the Trust or any other name
deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Ford Motor
Company, The American Road, Dearborn, Michigan 48121, telephone number (313)
322-3000. Upon ten days' written notice to the Holders, the Regular Trustees
may change the location of the Trust's principal office. The name of the
registered agent and office of the Trust in the State of Delaware is The Bank
of New York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711.
At any time, the Regular Trustees may designate another registered agent and/or
registered office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are: (a)(i) to issue
Preferred Securities in exchange for Depositary Shares pursuant to the Offer
and to deliver such Depositary Shares to Ford in consideration for the deposit
by Ford as trust assets of Debentures issued under the Indenture having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities so delivered; (ii) to enter into such agreements and
arrangements as may be necessary in connection with the Offer and to take all
action, and exercise such discretion, as may be necessary or desirable in
connection with the Offer and to file such registration statements or make such
other filings under the Securities Act, the Exchange Act or state securities or
"Blue Sky" laws as may be necessary or desirable in connection with the Offer
and the issuance of the Preferred Securities; and (iii) to issue and sell
Common Securities to Ford for cash and use the proceeds of such sale to
purchase as trust assets an equal aggregate principal amount of Debentures
issued under the Indenture; and (b) except as otherwise limited herein, to
engage in only those other activities necessary or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets or at any time while the Securities are
outstanding, otherwise undertake (or permit to be undertaken) any activity that
would result in or cause the Trust to be treated as anything other than a
grantor trust for United States federal income tax purposes.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Institutional Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Institutional Trustee in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are
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entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Unless otherwise provided in this Declaration, legal title to all
assets of the Trust shall be vested in the Trust. The Holders of Certificates
shall not have legal title to any part of the assets of the Trust, but shall
have an individual undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, authority and
duty to cause the Trust, and shall cause the Trust, to engage in the following
activities:
(a) to issue Preferred Securities and Common Securities, in each case
in accordance with this Declaration; provided, however, that the Trust may
issue no more than one series of Preferred Securities and no more than one
series of Common Securities, and, provided further, there shall be no interests
in the Trust other than the Securities and the issuance of Securities shall be
limited to a one-time, simultaneous issuance of both Preferred Securities and
Common Securities;
(b) in connection with the Offer and the issuance of the Preferred
Securities, at the direction of the Sponsor, to effect or cause to be effected
the filings, and to execute or cause to be executed, the documents, set forth
in Section 3.11;
(c) to acquire as trust assets Debentures upon consummation of the
Offer in connection with the exchange of Preferred Securities for Depositary
Shares pursuant to the Offer and to acquire as trust assets additional
Debentures with the proceeds of the sale of the Common Securities;
(d) to cause the Trust to enter into the Dealer Manager Agreement and
such other agreements and arrangements as may be necessary or desirable in
connection with the Offer and the consummation thereof, and to take all action,
and exercise all discretion, as may be necessary or desirable in connection
with the Offer or the consummation thereof;
(e) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Special Event, provided that the Regular Trustees
shall consult with the Sponsor and the Institutional Trustee before taking or
refraining to take any Ministerial Action in relation to a Special Event;
(f) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including for the
purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue relevant
notices to Holders of the Preferred Securities and Common Securities as to such
actions and applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(c), the Institutional Trustee
has the exclusive power to bring such Legal Action;
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(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate to the Institutional Trustee required by
Sec. 314(a)(4) of the Trust Indenture Act which certificate may be executed by
any Regular Trustee;
(k) to incur expenses which are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities, the Regular Trustees hereby initially
appointing Chemical Bank for such purposes;
(m) to take all actions and perform such duties as may be required of
the Regular Trustee pursuant to the terms of the Securities set forth in
Exhibits B and C hereto;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action which may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which the Trust has been
created;
(p) to take all action, not inconsistent with this Declaration or
with applicable law, which the Regular Trustees determine in their discretion
to be reasonable and necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.6, in order that:
(i) the Trust will not be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) the Trust will not be classified for United States
federal income tax purposes as an association taxable as a corporation
or a partnership and will be treated as a grantor trust for United
States federal income tax purposes; and
(iii) the Trust will comply with any requirements imposed by
any taxing authority on holders of instruments treated as indebtedness
for United States federal income tax purposes;
provided that such action does not adversely affect the interests of Holders;
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust; and
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(r) subject to the requirements of Rule 3a-5 and Sec. 317(b) of the
Trust Indenture Act, to appoint one or more Paying Agents in addition to the
Institutional Trustee.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner which is consistent with the purposes and functions of
the Trust set out in Section 3.3 and the Regular Trustees shall not take any
action which is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers nor any of the authority of the Institutional Trustee set forth in
Section 3.8.
SECTION 3.7 Prohibition of Actions by Trust and Trustees.
The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Institutional Trustee) shall not:
(a) invest any proceeds received by the Trust from holding the
Debentures but shall promptly distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any investments, other than investments represented by the
Debentures;
(e) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial ownership
of, or beneficial interests in, the Trust other than the Securities;
(g) incur any indebtedness for borrowed money; or
(h) (i) direct the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect to the Debentures, (ii)
waive any past default that is waivable under Section 5.1 of the Indenture,
(iii) exercise any right to rescind or annul any declaration that the principal
of all of the Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Debentures or
this Declaration, in each case where such consent shall be required, unless in
the case of this clause (h) the Institutional Trustee shall have received an
unqualified opinion of nationally recognized independent tax counsel recognized
as expert in such matters to the effect that such action will not cause the
Trust to be classified for United States federal income tax purposes as an
association taxable as a corporation or partnership and that the Trust will
continue to be classified as a grantor trust for United States federal income
tax purposes.
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SECTION 3.8 Powers and Duties of the Institutional Trustee.
(a) The Institutional Trustee shall:
(i) on the receipt of payments of funds made in respect of
the Debentures held by the Trust, without any further acts of the
Institutional Trustee or the Regular Trustees, promptly make payments
to the Holders of the Preferred Securities and Common Securities in
accordance with Section 6.1. Funds held in the Trust may be held
uninvested, and without liability for interest thereon, until
disbursed in accordance with this Declaration;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Preferred Securities and
the Common Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect promptly the distribution
pursuant to terms of the Securities of Debentures to Holders of
Securities upon the occurrence of a Special Event; and
(iv) have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the
Institutional Trustee, subject to Section 2.6(b), shall for the
benefit of the Holders of the Securities, enforce its rights as holder
of the Debentures under the Indenture, subject to the rights of the
Holders of the Preferred Securities pursuant to the terms of this
Declaration and the Trust Indenture Act.
(b) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities set forth in Exhibits B and C hereto.
(c) The Institutional Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or the Institutional
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act.
(d) All moneys and all Debentures held by the Trust will not be
subject to any right, charge, security interest, lien or claim of any kind in
favor of, or for the benefit of the Institutional Trustee or its agents or
their creditors.
(e) The Institutional Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities, transmit by mail, first
class postage prepaid, to the holders of the Securities, as their names and
addresses appear upon the register, notice of all defaults with respect to the
Securities known to the Institutional Trustee, unless such defaults shall have
been cured before the giving of such notice (the term "defaults" for the
purposes of this Section 3.8(e) being hereby defined to be an Indenture Event
of Default, not including any periods of grace provided for in the Indenture
and irrespective of the giving of any notice provided therein); provided, that,
except in the case of default in the payment of the principal of (or premium,
if any) or interest on any of the Debentures, the Institutional Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a
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trust committee of directors and/or Responsible Officers, of the Institutional
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of the Securities. The Institutional Trustee shall not
be deemed to have knowledge of any default, except (i) a default in the payment
of principal, premium or interest on the Debentures or (ii) any default as to
which the Institutional Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Declaration shall
have obtained written notice.
(f) The Institutional Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
thereof distributed to the Holders of Securities pursuant to the terms
of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and
accepted that appointment in accordance with Article V.
(g) The Institutional Trustee shall act as paying agent in respect of
the Securities and, subject to Section 3.6(r), may authorize one or more
Persons (each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to the Preferred
Securities. Any such Paying Agent shall comply with Sec. 317(b) of the Trust
Indenture Act. Any Paying Agent may be removed by the Institutional Trustee,
after consultation with the Regular Trustees, at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Institutional Trustee, subject to Section 3.6(r).
(h) The Institutional Trustee shall give prompt written notice to the
Holders of the Securities of any notice received by it from Ford of its
election to defer payments of interest on the Debentures by extending the
interest payment period with respect thereto.
(i) Subject to this Section 3.8, the Institutional Trustee shall have
none of the powers or the authority of the Regular Trustees set forth in
Section 3.6.
(j) The Institutional Trustee shall exercise the powers, duties and
rights set forth in this Section 3.8 and Section 3.10 in a manner which is
consistent with the purposes and functions of the Trust set out in Section 3.3
and the Institutional Trustee shall not take any action which is inconsistent
with the purposes and functions of the Trust set forth in Section 3.3.
SECTION 3.9 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.1(a)(3), the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees and the Institutional Trustee
described in this Declaration. Except as set forth in Section 5.1(a)(3), the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Sec. 3807 of the Business Trust Act. No implied
covenants or obligations shall be read into this Declaration against the
Delaware Trustee.
SECTION 3.10 Certain Rights and Duties of the Institutional Trustee.
(a) The Institutional Trustee, before the occurrence of an Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration, and no implied covenants shall be read into
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this Declaration against the Institutional Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Institutional Trustee shall exercise such of the rights and powers vested in it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Institutional
Trustee shall be determined solely by the express
provisions of this Declaration, and the Institutional
Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into
this Declaration against the Institutional Trustee;
and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Institutional Trustee and conforming to the
requirements of this Declaration; but in the case of
any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Institutional Trustee, unless it shall be proved that the
Institutional Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Institutional Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders as provided herein
relating to the time, method and place of conducting any proceeding
for any remedy available to the Institutional Trustee hereunder or
under the Indenture, or exercising any trust or power conferred upon
the Institutional Trustee under this Declaration; and
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if it shall
have reasonable ground for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Declaration or adequate indemnity against such risk or liability is
not reasonably assured to it.
(c) Subject to the provisions of Section 3.10(a) and (b):
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(i) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Institutional Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part
and, if the Trust is excluded from the definition of Investment
Company solely by means of Rule 3a-5, subject to the requirements of
Rule 3a-5, request and rely upon a certificate, which shall comply
with the provisions of Sec. 314(e) of the Trust Indenture Act, signed
by any two of the Regular Trustees or by an authorized officer of the
Sponsor, as the case may be;
(ii) The Institutional Trustee (A) may consult with counsel
(which may be counsel to the Sponsor or any of its Affiliates and may
include any of its employees) selected by it in good faith and with
due care and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and in accordance with
such advice and opinion and (B) shall have the right at any time to
seek instructions concerning the administration of this Declaration
from any court of competent jurisdiction;
(iii) The Institutional Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Institutional Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it in good faith and with due care;
(iv) The Institutional Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any Holders, unless such
Holders shall have offered to the Institutional Trustee reasonable
security and indemnity against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred
by it in complying with such request or direction; provided that
nothing contained in this clause (iv) shall relieve the Institutional
Trustee of the obligation, upon the occurrence of an Event of Default
(which has not been cured or waived) to exercise such of the rights
and powers vested in it by this Declaration, and to use the same
degree of care and skill in this exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her
own affairs; and
(v) Any action taken by the Institutional Trustee or its
agents hereunder shall bind the Holders of the Securities and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action; and no third
party shall be required to inquire as to the authority of the
Institutional Trustee to so act, or as to its compliance with any of
the terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Institutional Trustee's or its agent's
taking such action.
SECTION 3.11 Registration Statement and Related Matters.
In accordance with the Original Declaration, Ford and the Trustees
have authorized and directed, and hereby confirm the authorization of, Ford, as
the sponsor of the Trust, (i) to file with the Commission and execute, in each
case on behalf of the Trust, (a) the Registration Statement on Form S-4 (File
No. 33- ) (the "1933 Act Registration Statement") and any
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pre-effective or post-effective amendments to such Registration Statement,
relating to the registration under the Securities Act of the Preferred
Securities of the Trust, (b) a Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement") (including all pre-
effective and post-effective amendments thereto) relating to the registration
of the Preferred Securities of the Trust under Section 12(b) of the Exchange
Act and (c) an Issuer Tender Offer Statement on Schedule 13E-4 and any other
tender offer statement required to be filed by the Trust with the Commission
(including, if necessary, Schedule 14D-1) relating to the Offer (collectively,
the "Tender Offer Schedules") and any amendment or supplement thereto; (ii) to
file with the New York Stock Exchange ("NYSE") and execute on behalf of the
Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the NYSE; (iii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as Ford on behalf of the Trust, may deem necessary or desirable
and (iv) to execute on behalf of the Trust the Dealer Manager Agreement,
relating to the Offer, substantially in the form included as Exhibit 1.1 to the
1933 Act Registration Statement. In the event that any filing referred to in
clauses (i)-(iii) above is required by the rules and regulations of the
Commission, the NYSE or state securities or blue sky laws, to be executed on
behalf of the Trust by the Trustees, the Regular Trustees, in their capacities
as Trustees of the Trust, are hereby authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the foregoing,
it being understood that the Institutional Trustee and the Delaware Trustee, in
their capacities as Trustees of the Trust, shall not be required to join in any
such filing or execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the NYSE or state securities or
blue sky laws. In connection with all of the foregoing, Ford and each Trustee,
solely in its capacity as Trustee of the Trust, have constituted and appointed,
and hereby confirm the appointment of, _____________________, and each of them,
as his, her or its, as the case may be, true and lawful attorneys-in-fact, and
agents, with full power of substitution and resubstitution, for Ford or such
Trustee or in Ford's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement, the 1934 Act Registration
Statement and the Tender Offer Schedules and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as Ford or such Trustee might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute or substitutes, shall do or cause to be done by
virtue hereof.
SECTION 3.12 Filing of Amendments to Certificate of Trust.
The Certificate of Trust as filed with the Secretary of State of the
State of Delaware on September 19, 1995 is attached hereto as Exhibit A. On or
after the date of execution of this Declaration, the Trustees shall cause the
filing with the Secretary of State of the State of Delaware of such amendments
to the Certificate of Trust as the Trustees shall deem necessary or desirable.
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SECTION 3.13 Execution of Documents by Regular Trustees.
Unless otherwise determined by the Regular Trustees and except as
otherwise required by the Business Trust Act with respect to the Certificate of
Trust or otherwise, a majority of, or if there are only two, both of, the
Regular Trustees are authorized to execute and deliver on behalf of the Trust
any documents which the Regular Trustees have the power and authority to
execute or deliver pursuant to this Declaration.
SECTION 3.14 Trustees Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.15 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Article
VIII hereof, shall have existence until December 31, 2026.
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities by Sponsor.
The Sponsor will purchase Common Securities issued by the Trust at the
same time as the Preferred Securities are issued in exchange for Depositary
Shares pursuant to the Offer, such purchase to be in an amount equal to 3% of
the sum of (i) the aggregate stated liquidation amount of the Preferred
Securities issued in exchange for Depositary Shares pursuant to the Offer and
(ii) the proceeds derived from the sale of the Common Securities.
SECTION 4.2 Expenses.
(a) The Sponsor shall be responsible for and shall pay for all debts
and obligations (other than with respect to the Securities) and all costs and
expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization of the Trust, the issuance of the Preferred
Securities pursuant to the Offer, the fees and expenses (including reasonable
counsel fees and expenses) of the Trustees (including any amounts payable under
Article X), the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the disposition of
Trust assets).
(b) The Sponsor will pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
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(c) The Sponsor's obligations under this Section 4.2 shall be for the
benefit of, and shall be enforceable by, any Person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.2 directly against the Sponsor and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before
proceeding against the Sponsor. The Sponsor agrees to execute such additional
agreements as may be necessary or desirable in order to give full effect to the
provisions of this Section 4.2.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Qualifications.
(a) The number of Trustees initially shall be five (5). At any time
(i) before the issuance of the Securities, the Sponsor may, by written
instrument, increase or decrease the number of, and appoint, remove and replace
the, Trustees, and (ii) after the issuance of the Securities, the number of
Trustees may be increased or decreased solely by, and Trustees may be
appointed, removed or replaced solely by, vote of Holders of Common Securities
representing a Majority in liquidation amount of the Common Securities voting
as a class; provided that in any case:
(1) the number of Trustees shall be at least five (5) unless
the Trustee that acts as the Institutional Trustee also acts as the
Delaware Trustee, in which case the number of Trustees shall be at
least three (3);
(2) at least a majority of the Trustees shall at all times be
officers, directors or employees of Ford;
(3) if required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be either a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and
otherwise is permitted to act as a Trustee hereunder under the laws of
the State of Delaware, except that if the Institutional Trustee has
its principal place of business in the State of Delaware and otherwise
is permitted to act as a Trustee hereunder under the laws of the State
of Delaware, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.9 shall have no application; and
(4) there shall at all times be an Institutional Trustee
hereunder which shall satisfy the requirements of Section 5.1(c).
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed
representatives.
(b) The initial Regular Trustees shall be:
The Bank of New York
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Malcolm S. Macdonald
Elizabeth S. Acton
John M. Rintamaki
c/o Ford Motor Company
The American Road
Dearborn, Michigan 48121
(c) There shall at all times be one Trustee which shall act as
Institutional Trustee. In order to act as Institutional Trustee hereunder, such
Trustee shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted
by the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then for the purposes of this Section 5.1(c)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
If at any time the Institutional Trustee shall cease to satisfy the
requirements of clauses (i)-(ii) above, the Institutional Trustee shall
immediately resign in the manner and with the effect set out in Section 5.2(d).
If the Institutional Trustee has or shall acquire any "conflicting interest"
within the meaning of Sec. 310(b) of the Trust Indenture Act, the Institutional
Trustee and the Holders of the Common Securities (as if such Holders were the
obligor referred to in Sec. 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Sec. 310(b) of the Trust Indenture Act.
The Preferred Guarantee shall be deemed to be specifically described in this
Declaration for the purposes of clause (i) of the first proviso contained in
Sec. 310(b) of the Trust Indenture Act.
The initial Trustee which shall serve as the Institutional Trustee is
The Bank of New York, whose address is as set forth in Section 14.1(b).
(d) The initial Trustee which shall serve as the Delaware Trustee is
The Bank of New York (Delaware), whose address is as set forth in Section
14.1(c).
(e) Any action taken by Holders of Common Securities pursuant to this
Article V shall be taken at a meeting of Holders of Common Securities convened
for such purpose or by written consent as provided in Section 12.2.
(f) No amendment may be made to this Section 5.1 which would change
any rights with respect to the number, existence or appointment and removal of
Trustees, except with the consent of each Holder of Common Securities.
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SECTION 5.2 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.2(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of the Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of the Securities, by vote of the
Holders of a Majority in liquidation amount of the Common Securities
voting as a class.
(b) (i) The Trustee that acts as Institutional Trustee shall
not be removed in accordance with Section 5.2(a) until a Successor
Institutional Trustee possessing the qualifications to act as
Institutional Trustee under Section 5.1(c) has been appointed and has
accepted such appointment by written instrument executed by such
Successor Institutional Trustee and delivered to the Regular Trustees,
the Sponsor and the Institutional Trustee being removed; and
(ii) the Trustee that acts as Delaware Trustee shall not
be removed in accordance with Section 5.2(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Section
5.1(a)(3) (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Regular Trustees, the
Sponsor and the Delaware Trustee being removed.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
(d) Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided however, that:
(i) no such resignation of the Trustee that acts as the
Institutional Trustee shall be effective until a Successor
Institutional Trustee possessing the qualifications to act as
Institutional Trustee under Section 5.1(c) has been appointed and has
accepted such appointment by instrument executed by such Successor
Institutional Trustee and delivered to the Trust, the Sponsor and the
resigning Institutional Trustee;
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee; and
(iii) no such resignation of a Special Regular Trustee
shall be effective until the 60th day following delivery of the
Resignation Request to the Sponsor and the Trust or such later date
specified in the Resignation Request during which period the Holders
of the Preferred Securities shall have the right to appoint a
successor Special Regular Trustee as provided in this Article V.
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(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.2 within 60 days after delivery to the Sponsor and the Trust of a
Resignation Request, the resigning Institutional Trustee or Delaware Trustee
may petition any court of competent jurisdiction for appointment of a Successor
Institutional Trustee or Successor Delaware Trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
Successor Institutional Trustee or Successor Delaware Trustee, as the case may
be.
SECTION 5.3 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1 or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy
shall be filled with a Trustee appointed in accordance with the requirements of
this Article V.
SECTION 5.4 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee, or
any one of them, shall not operate to annul the Trust. Whenever a vacancy in
the number of Regular Trustees shall occur until such vacancy is filled as
provided in this Article V, the Regular Trustees in office, regardless of their
number, shall have all the powers granted to the Regular Trustees and shall
discharge all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 5.5 Meetings.
Meetings of the Regular Trustees shall be held from time to time upon
the call of any Trustee. Regular meetings of the Regular Trustees may be held
at a time and place fixed by resolution of the Regular Trustees. Notice of any
in-person meetings of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any telephonic
meetings of the Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees.
SECTION 5.6 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any registration statement or amendment
thereto or other document or schedule filed
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with the Commission or making any other governmental filing (including, without
limitation filings referred to in Section 3.11).
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive periodic distributions, redemption payments and
liquidation distributions in accordance with the applicable terms of the
relevant Holder's Securities ("Distributions"). Distributions shall be made to
the Holders of Preferred Securities and Common Securities in accordance with
the terms of the Securities as set forth in Exhibits B and C hereto. If and to
the extent that Ford makes a payment of interest (including Compounded Interest
(as defined in the Indenture)), premium and principal on the Debentures held by
the Institutional Trustee (the amount of any such payment being a "Payment
Amount"), the Institutional Trustee shall and is directed to promptly make a
Distribution of the Payment Amount to Holders in accordance with the terms of
the Securities as set forth in Exhibits B and C hereto.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall issue on behalf of the Trust
securities in fully registered form representing undivided beneficial interests
in the assets of the Trust in accordance with Section 7.1(b) and for the
consideration specified in Section 3.3.
(b) The Regular Trustees shall issue on behalf of the Trust one class
of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Exhibit B (the
"Preferred Securities") which terms are incorporated by reference in, and made
a part of, this Declaration as if specifically set forth herein, and one class
of common securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Exhibit C (the "Common
Securities") which terms are incorporated by reference in, and made a part of,
this Declaration as if specifically set forth herein. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by the
Regular Trustees (or if there are more than two Regular Trustees by any two of
the Regular Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee. Typographical and
other minor errors or defects in any such reproduction of any such signature
shall not affect the validity of any Security. In case any Regular Trustee of
the Trust who shall
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have signed any of the Certificates shall cease to be such Regular Trustee
before the Certificate so signed shall be delivered by the Trust, such
Certificate nevertheless may be delivered as though the person who signed such
Certificate had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons as, at the actual date of the
execution of such Security, shall be the Regular Trustees of the Trust,
although at the date of the execution and delivery of the Declaration any such
person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Securities may be listed, or to conform to usage. Pending the
preparation of definitive Certificates, the Regular Trustees on behalf of the
Trust may execute temporary Certificates (printed, lithographed or
typewritten), in substantially in the form of the definitive Certificates in
lieu of which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Certificates all as may be
determined by the Regular Trustees. Each temporary Certificate shall be
executed by the Regular Trustees on behalf of the Trust upon the same
conditions and in substantially the same manner, and with like effect, as
definitive Certificates. Without unnecessary delay, the Regular Trustees on
behalf of the Trust will execute and furnish definitive Certificates and
thereupon any or all temporary Certificates may be surrendered to the transfer
agent and registrar in exchange therefor (without charge to the Holders). Each
Certificate whether in temporary or definitive form shall be countersigned by
the manual or facsimile signature of an authorized signatory of the Person
acting as registrar and transfer agent for the Securities, which shall
initially be Chemical Bank.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by this Declaration.
(g) Upon issuance of the Securities as provided in this Declaration,
the Regular Trustees on behalf of the Trust shall return to Ford the $10
constituting initial trust assets as set forth in the Original Declaration.
ARTICLE VII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
This Declaration and the Trust shall terminate and be of no further
force or effect when:
(i) all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders of Securities in accordance with the terms of
the Securities; or
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(ii) all of the Debentures shall have been distributed to the
Holders of Securities in exchange for all of the Securities in
accordance with the terms of the Securities; or
(iii) upon the expiration of the term of the Trust as set
forth in Section 3.15,
and a certificate of cancellation is filed by the Trustees with the Secretary
of State of the State of Delaware. The Trustees shall so file such a
certificate as soon as practicable after the occurrence of an event referred to
in this Section 8.1.
The provisions of Sections 3.10 and 4.2 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration. Any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, Ford and any Related Party may only
transfer Common Securities to Ford or a Related Party, provided that any such
transfer shall be subject to the condition that the transferor shall have
obtained (1) either a ruling from the Internal Revenue Service or an
unqualified written opinion addressed to the Trust and delivered to the
Trustees of nationally recognized independent tax counsel experienced in such
matters to the effect that such transfer will not (i) cause the Trust to be
treated as issuing a class of interests in the Trust differing from the class
of interests represented by the Common Securities originally issued to Ford,
(ii) result in the Trust acquiring or disposing of, or being deemed to have
acquired or disposed of, an asset, or (iii) result in or cause the Trust to be
treated as anything other than a grantor trust for United States federal income
tax purposes and (2) an unqualified written opinion addressed to the Trust and
delivered to the Trustees of a nationally recognized independent counsel
experienced in such matters that such transfer will not cause the Trust to be
an Investment Company or controlled by an Investment Company.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges which may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to
be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A
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transferee of a Certificate shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee shall be deemed to
have agreed to be bound by this Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
The Preferred Securities Certificates, on original issuance, will be
issued in fully registered form. With respect to any Certificates registered on
the books and records of the Trust in the name of a Clearing Agency or the
nominee of a Clearing Agency:
(i) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including
the payment of Distributions on such Certificates and receiving
approvals, votes or consents hereunder) as the Preferred Security
Holder and the sole holder of such Certificates and, except as set
forth herein, shall have no obligation to the Preferred Security
Beneficial Owners;
(ii) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions
of this Section 9.4 shall control; and
(iii) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants. The Clearing Agency will make book
entry transfers among Clearing Agency Participants and receive and
transmit payments of Distributions on such Certificates to such
Clearing Agency Participants.
SECTION 9.5 Notices to Holders of Certificates.
Whenever a notice or other communication to the Holders is required to
be given under this Declaration, the relevant Trustees shall give such notices
and communications to the Holders and, with respect to any Preferred Security
Certificate registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Trustees shall, except as set forth herein, have no
obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to the Preferred Securities.
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SECTION 9.7 Definitive Preferred Securities Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.6 or (ii) the Regular Trustees elect after consultation
with the Sponsor to terminate the book entry system through the Clearing Agency
with respect to the Preferred Securities, then upon surrender of the
Certificates representing the Book Entry Interests with respect to the
Preferred Securities by the Clearing Agency, accompanied by registration
instructions, the Regular Trustees shall cause definitive Preferred Security
Certificates to be delivered to Preferred Security Beneficial Owners in
accordance with the instructions of the Clearing Agency. Neither the Trustees
nor the Trust shall be liable for any delay in delivery of such instructions
and each of them may conclusively rely on and shall be protected in relying on,
such instructions.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b)
there shall be delivered to the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
any two Regular Trustees on behalf of the Trust shall execute and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 9.8, the Regular Trustees
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence (or, in the
case of the Institutional Trustee, negligence) or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value
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and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
(c) Pursuant to Sec. 3803 (a) of the Business Trust Act, the Holders
of Securities, in their capacities as Holders, shall be entitled to the same
limitation of liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by
this Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence (or, in the case of the
Institutional Trustee, negligence) or willful misconduct with respect to such
acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced
by the Sponsor prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Sponsor of an undertaking by or on
behalf of the Indemnified Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be indemnified as authorized in
Section 10.2(a).
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books and records
of the Trust, together with a copy of this Declaration and a certified copy of
the Certificate of Trust, or any amendment thereto, shall at all times be
maintained at the principal office of the Trust and shall be open for
inspection for any examination by any Holder or its duly authorized
representative for any purpose reasonably related to its interest in the Trust
during normal business hours.
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[(b) The Regular Trustees shall, as soon as available after the end
of each Fiscal Year of the Trust, cause to be prepared and mailed to each
Holder of Securities unaudited financial statements of the Trust for such
Fiscal Year, prepared in accordance with generally accepted accounting
principles, provided that if the Trust is required to comply with the periodic
reporting requirements of Sections 13(a) or 15(d) of the Exchange Act, such
financial statements for such Fiscal Year shall be examined and reported on by
a firm of independent certified public accountants selected by the Regular
Trustees (which firm may be the firm used by the Sponsor).]
(c) The Regular Trustees shall cause to be prepared and mailed to
each Holder of Securities, an annual United States federal income tax
information statement, on such form as is required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be prepared and filed with
the appropriate taxing authority, an annual United States federal income tax
return, on such form as is required by the Code, and any other annual income
tax returns required to be filed by the Regular Trustees on behalf of the Trust
with any state or local taxing authority, such returns to be filed as soon as
practicable after the end of each Fiscal Year of the Trust.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust. The sole signatories for such accounts shall be
designated by the Regular Trustees.
SECTION 11.4 Withholding.
The Trust and the Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to
each Holder, and any representations and forms as shall reasonably be requested
by the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Trust shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of
any claimed overwithholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount to be withheld was not withheld from a
Distribution, the Trust may reduce subsequent Distributions by the amount of
such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and
only by, a written instrument executed by a
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majority of the Regular Trustees; provided, however, that (i) no amendment to
this Declaration shall be made unless the Regular Trustees shall have obtained
(A) either a ruling from the Internal Revenue Service or a written unqualified
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that such amendment will not cause the Trust to be
classified for United States federal income tax purposes as an association
taxable as a corporation or a partnership and to the effect that the Trust will
continue to be treated as a grantor trust for purposes of United States federal
income taxation and (B) a written unqualified opinion of nationally recognized
independent counsel experienced in such matters to the effect that such
amendment will not cause the Trust to be an Investment Company which is
required to be registered under the Investment Company Act, (ii) at such time
after the Trust has issued any Securities which remain outstanding, any
amendment which would adversely affect the rights, privileges or preferences of
any Holder of Securities may be effected only with such additional requirements
as may be set forth in the terms of such Securities, (iii) Section 4.2, Section
9.1(c) and this Section 12.1 shall not be amended without the consent of all of
the Holders of the Securities, (iv) no amendment which adversely affects the
rights, powers and privileges of the Institutional Trustee shall be made
without the consent of the Institutional Trustee, (v) Article IV shall not be
amended without the consent of the Sponsor and (vi) the rights of Holders of
Common Securities under Article V to increase or decrease the number of, and to
appoint, replace or remove Trustees shall not be amended without the consent of
each Holder of Common Securities.
(b) Notwithstanding Section 12.1(a)(ii), this Declaration may be
amended without the consent of the Holders of the Securities to (i) cure any
ambiguity, (ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this Declaration,
(iii) to add to the covenants, restrictions or obligations of the Sponsor, and
(iv) to conform to any changes in Rule 3a-5 or any change in interpretation or
application of Rule 3a-5 by the Commission, which amendment does not adversely
affect the rights, preferences or privileges of the Holders.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of Preferred Securities and/or Common
Securities may be called at any time by the Regular Trustees (or as provided in
the terms of the Securities) to consider and act on any matter on which Holders
of such class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of Holders of Preferred Securities or Common
Securities, if directed to do so by Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of Securities exercising the right to call a meeting and only those
specified Certificates shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provision shall apply to meetings of Holders of
Securities:
(i) Notice of any such meeting shall be given by mail to all
the Holders of Securities having a right to vote thereat not less than
7 days nor more than 60 days prior
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to the date of such meeting. Whenever a vote, consent or approval of
the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may
be taken without a meeting if a consent in writing setting forth the
action so taken is signed by Holders of Securities owning not less
than the minimum aggregate liquidation amount of Securities that would
be necessary to authorize or take such action at a meeting at which
all Holders of Securities having a right to vote thereon were present
and voting. Prompt notice of the taking of action without a meeting
shall be given to the Holders of Securities entitled to vote who have
not consented in writing. The Regular Trustees may specify that any
written ballot submitted to the Holders of Securities for the purpose
of taking any action without a meeting shall be returned to the Trust
within the time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a Holder of a Security is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of the Security executing it. Except as otherwise
provided herein or in the terms of the Securities, all matters
relating to the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Holders of the
Securities were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate.
(iv) Unless otherwise provided in the Business Trust Act,
this Declaration or the rules of any stock exchange on which the
Preferred Securities are then listed or admitted for trading, the
Regular Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of Securities, waiver of any
such notice, action by consent without a meeting, the establishment of
a record date, quorum requirements, voting in person or by proxy or
any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.
(a) The Trustee which acts as initial Institutional Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Institutional Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Institutional
Trustee's acceptance of its appointment as Institutional Trustee that:
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(i) The Institutional Trustee is a banking corporation with
trust powers, duly organized, validly existing and in good standing
under the laws of the State of its incorporation, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration.
(ii) The execution, delivery and performance by the
Institutional Trustee of this Declaration has been duly authorized by
all necessary corporate action on the part of the Institutional
Trustee. The Declaration has been duly executed and delivered by the
Institutional Trustee, and constitutes a legal, valid and binding
obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law).
(iii) The execution, delivery and performance of this
Declaration by the Institutional Trustee does not conflict with or
constitute a breach of the Charter or By-laws of the Institutional
Trustee.
(iv) No consent, approval or authorization of, or
registration with or notice to, any banking authority which supervises
or regulates the Institutional Trustee is required for the execution,
delivery or performance by the Institutional Trustee, of this
Declaration.
(v) The Institutional Trustee satisfies the qualifications
set forth in Section 5.1(c).
(b) The Trustee which acts as initial Delaware Trustee represents and
warrants to the Trust and the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment
as Delaware Trustee, that it satisfies the qualifications set forth in Section
5.1(a)(3).
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Regular
Trustees on behalf of the Trust may give notice of to the Holders of the
Securities):
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Ford Motor Company Capital Trust I
c/o Ford Motor Company
The American Road
Dearborn, Michigan 48121
Attention: Trustees
Facsimile No: (313) 248-8049
(b) if given to the Institutional Trustee, at the mailing address of
the Institutional Trustee set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities):
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust
Facsimile No: (212) 571-3050
(c) if given to the Delaware Trustee, at the mailing address of the
Delaware Trustee set forth below (or such other address as the Delaware Trustee
may give notice of to the Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attention: [ ]
Facsimile No: [ ]
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
Ford Motor Company
The American Road
Dearborn, Michigan 48121
Attention: Treasurer
Facsimile No: (313) 248-8049
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
A copy of any notice to the Institutional Trustee or the Delaware
Trustee shall also be sent to the Trust. All notices shall be deemed to have
been given, when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
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SECTION 14.2 Undertaking for Costs.
All parties to this Declaration agree, and each Holder of any
Securities by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Declaration, or in any suit against the
Institutional Trustee for any action taken or omitted by it as Institutional
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 14.2 shall not apply to any suit instituted by the Institutional
Trustee, to any suit instituted by any Holder of Preferred Securities, or group
of Holders of Preferred Securities, holding more than 10% in aggregate
liquidation amount of the outstanding Preferred Securities, or to any suit
instituted by any Holder of Preferred Securities for the enforcement of the
payment of the principal of (or premium, if any) or interest on the Debentures,
on or after the respective due dates expressed in such Debentures.
SECTION 14.3 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.6 Counterparts.
This Declaration may contain more than one counterpart of the
signature pages and this Declaration may be executed by the affixing of the
signature of the Sponsor and each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
SECTION 14.7 Intention of the Parties.
It is the intention of the parties hereto that the Trust not be
classified for United States federal income tax purposes an association taxable
as a corporation or partnership but that the Trust be treated as a grantor
trust for United States federal income tax purposes. The provisions of this
Declaration shall be interpreted to further this intention of the parties.
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SECTION 14.8 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
Ford Motor Company,
as Sponsor
By:_____________________________
Name:
Title:
________________________________
Malcolm S. Macdonald,
as Trustee
________________________________
Elizabeth S. Acton,
as Trustee
________________________________
John M. Rintamaki,
as Trustee
The Bank of New York,
as Trustee
By:_____________________________
Name:
Title:
The Bank of New York (Delaware),
as Trustee
By:_____________________________
Name:
Title:
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There personally appeared before me ________ (on behalf of Ford Motor
Company) and Malcolm S. Macdonald, Elizabeth S. Acton and John M. Rintamaki
who acknowledged the foregoing instrument to be his, her or its free act and
deed and the free act and deed of Ford Motor Company and the Trustees of Ford
Motor Company Capital Trust I.
Before me,
________________________________
Notary Public
My Commission Expires: _______________________________________________
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There personally appeared before me __________________ (on behalf of
The Bank of New York, as Trustee) who acknowledged the foregoing instrument to
be his, her or its free act and deed and the free act and deed of The Bank of
New York, as Trustee.
Before me,
________________________________
Notary Public
My Commission Expires: _______________________________________________
There personally appeared before me __________________ (on behalf of
The Bank of New York (Delaware), as Trustee) who acknowledged the foregoing
instrument to be his, her or its free act and deed and the free act and deed of
The Bank of New York (Delaware), as Trustee.
Before me,
________________________________
Notary Public
My Commission Expires: _______________________________________________
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EXHIBIT A
CERTIFICATE OF TRUST
OF
FORD MOTOR COMPANY CAPITAL TRUST I
This Certificate of Trust of Ford Motor Company Capital Trust I (the
"Trust"), dated September 19, 1995, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. Sec. 3801 et seq.).
1. Name. The name of the business trust being formed hereby is Ford
Motor Company Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is The
Bank of New York (Delaware), a Delaware banking corporation, White Clay Center,
Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK,
as trustee
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK (Delaware),
as trustee
By: _____________________________
Name:
Title:
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EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust of Ford Motor Company Capital Trust I dated as of September __, 1995 (as
amended from time to time, the "Declaration"), the designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth below (each capitalized term used but not
defined herein having the meaning set forth in the Declaration):
1. Designation and Number. Preferred Securities of the Trust with an
aggregate liquidation amount in the assets of the Trust of
___________________________________ (____) and a liquidation amount in the
assets of the Trust of $25 per Preferred Security, are hereby designated as
"____% Trust Originated Preferred Securities". The Preferred Security
Certificates evidencing the Preferred Securities shall be substantially in the
form attached hereto as Annex I, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice or
to conform to the rules of any stock exchange on which the Preferred Securities
are listed. The Preferred Securities shall be issued to former holders of
Depositary Shares ("Depository Shares") each representing 1/2000 of a share of
Series B Cumulative Preferred Stock (the "Series B Preferred"), of Ford Motor
Company ("Ford") in exchange for such Depository Shares pursuant to the Offer.
In connection with such Offer and the purchase by Ford of the Common
Securities, Ford will deposit in the Trust, and the Trust will purchase,
respectively, as trust assets Debentures of Ford having an aggregate principal
amount equal to $__________, and bearing interest at an annual rate equal to
the annual Distribution rate on the Preferred Securities and Common Securities
and having payment and redemption provisions which correspond to the payment
and redemption provisions of the Preferred Securities and Common Securities.
2. Distributions. (a) Periodic distributions payable on each
Preferred Security will be fixed at a rate per annum of ____% (the "Coupon
Rate") of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears for more than one quarter will bear interest at the
rate per annum of ____% thereof, compounded quarterly to the extent permitted
by law. The term "Distributions" as used in these terms means such periodic
cash distributions and any such interest payable unless otherwise stated. A
Distribution will be made by the Institutional Trustee only to the extent that
interest payments are made in respect of the Debentures held by the Trust. The
amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly Distribution period
for which Distributions are computed, Distributions will be computed on the
basis of the actual number of days elapsed in such a 30-day month.
(b) Distributions on the Preferred Securities will be cumulative,
will accrue from ______, 1995 and will be payable quarterly in arrears, on
March 31, June 30, September 30 and December 31 of each year, commencing on
December 31, 1995, except as otherwise described below, but only if and to the
extent that interest payments are made in respect of the Debentures held by the
Trust. In addition, holders of Preferred Securities will be entitled to a cash
distribution at the rate of 8.25% per annum of the liquidation amount thereof
from ________, 1995 through ______, 1995, payable on December 31, 1995
("Pre-Issuance Interest"). With the
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exception of Pre-Issuance Interest, so long as Ford shall not be in default in
the payment of interest on the Debentures, Ford has the right under the
Indenture for the Debentures to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarterly interest periods (each, an "Extension
Period") and, as a consequence, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the rate
of ____% per annum, compounded quarterly to the extent permitted by law during
any such Extension Period. Prior to the termination of any such Extension
Period, Ford may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarterly interest periods and provided further
that no Extension Period may extend beyond the maturity of the Debentures. Upon
the termination of any Extension Period and the payment of all amounts then
due, Ford may commence a new Extension Period, subject to the above
requirements. Payments of accrued Distributions will be payable to Holders of
Preferred Securities as they appear on the books and records of the Trust on
the record date for the first payment occurring on or after the end of the
Extension Period.
(c) Distributions on the Preferred Securities will be payable
promptly by the Institutional Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates, which will be 15
calendar days prior to the relevant Distribution date, which record and payment
dates correspond to the record and interest payment dates on the Debentures.
Distributions payable on any Preferred Securities that are not punctually paid
on any Distribution payment date as a result of Ford having failed to make the
corresponding interest payment on the Debentures will forthwith cease to be
payable to the person in whose name such Preferred Security is registered on
the relevant record date, and such defaulted Distribution will instead be
payable to the person in whose name such Preferred Security is registered on
the special record date established by the Regular Trustees, which record date
shall correspond to the special record date or other specified date determined
in accordance with the Indenture; provided, however, that Distributions shall
not be considered payable on any Distribution payment date falling within an
Extension Period unless Ford has elected to make a full or partial payment of
interest accrued on the Debentures on such Distribution payment date. Subject
to any applicable laws and regulations and the provisions of the Declaration,
each payment in respect of the Preferred Securities will be made as described
in paragraph 9 hereof. If any date on which Distributions are payable on the
Preferred Securities is not a Business Day, then payment of the Distribution
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date and the record date for
such payment shall be the immediately preceding Business Day.
(d) All Distributions paid with respect to the Preferred Securities
and the Common Securities will be paid Pro Rata to the Holders thereof entitled
thereto. If an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities with respect to
Distributions.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money or
property shall be distributed Pro Rata among the Holders of the Preferred
Securities and Common Securities.
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3. Liquidation Distribution Upon Dissolution. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Preferred Securities and Common Securities at the date of
the dissolution, winding-up or termination, as the case may be, will be
entitled to receive Pro Rata solely out of the assets of the Trust available
for distribution to Holders of Preferred Securities and Common Securities after
satisfaction of liabilities to creditors, an amount equal to the aggregate of
the stated liquidation amount of $25 per Preferred Security and Common Security
plus accrued and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"), unless, in connection with such
dissolution, winding-up or termination, and after satisfaction of liabilities
to creditors, Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of such Preferred Securities and Common
Securities and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, such Preferred Securities and Common
Securities, shall be distributed Pro Rata to the Holders of the Preferred
Securities and Common Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Preferred Securities and Common Securities shall be paid,
subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution Pro Rata with Holders of Preferred
Securities, except that if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part,
whether at maturity, upon redemption at any time or from time to time on or
after December 1, 2002, the proceeds of such repayment will be promptly applied
to redeem Pro Rata Preferred Securities and Common Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 10 nor more than 60 days'
notice, at a redemption price of $25 per Preferred and Common Security plus an
amount equal to accrued and unpaid Distributions thereon to the date of
redemption, payable in cash (the "Redemption Price"). The date of any such
repayment or redemption of Preferred Securities and Common Securities shall be
established to coincide with the repayment or redemption date of the
Debentures.
(b) The Common Securities will be entitled to be redeemed on a Pro
Rata basis with the Preferred Securities, except that if an Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities with respect to the payment of the Redemption Price.
If fewer than all the outstanding Preferred Securities and Common Securities
are to be so redeemed, the Preferred Securities and the Common Securities will
be redeemed Pro Rata and the Preferred Securities to be redeemed will be
redeemed as described in paragraph 4(f)(ii) below. If a partial redemption
would result in the delisting of the Preferred Securities by any national
securities exchange or other organization on which the
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<PAGE> 43
Preferred Securities are then listed, Ford pursuant to the Indenture will only
redeem Debentures in whole and, as a result, the Trust may only redeem the
Preferred Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each
as hereinafter defined, and each a "Special Event") shall occur and be
continuing, the Regular Trustees shall, unless the Debentures are redeemed in
the limited circumstances described below, dissolve the Trust and, after
satisfaction of creditors, cause Debentures held by the Institutional Trustee
having an aggregate principal amount equal to the aggregate stated liquidation
amount of and accrued and unpaid interest equal to accrued and unpaid
Distributions on, and having the same record date for payment as the Preferred
Securities and Common Securities, to be distributed to the Holders of the
Preferred Securities and Common Securities on a Pro Rata basis in liquidation
of such Holders' interests in the Trust, within 90 days following the
occurrence of such Special Event (the "90 Day Period"), provided, however, that
in the case of the occurrence of a Tax Event, as a condition of such
dissolution and distribution, the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such
matters (a "No Recognition Opinion"), which opinion may rely on any then
applicable published revenue ruling of the Internal Revenue Service, to the
effect that the Holders of the Preferred Securities will not recognize any gain
or loss for United States federal income tax purposes as a result of the
dissolution of the Trust and distribution of Debentures; and provided, further,
that, if and as long as at the time there is available to the Trust the
opportunity to eliminate, within the 90 Day Period, the Special Event by taking
some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure that has no adverse effect on
the Trust, Ford, or the Holders of the Preferred Securities ("Ministerial
Action"), the Trust will pursue such measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the Regular
Trustees have received an opinion (a "Redemption Tax Opinion") of nationally
recognized independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial risk that Ford would
be precluded from deducting the interest on the Debentures for United States
federal income tax purposes even if the Debentures were distributed to the
Holders of Preferred Securities and Common Securities in liquidation of such
Holder's interest in the Trust as described in this paragraph 4(c) or (ii) the
Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, Ford shall have the right
at any time, upon not less than 10 nor more than 60 days notice, to redeem the
Debentures in whole or in part for cash at the Redemption Price within 90 days
following the occurrence of such Tax Event, and promptly following such
redemption Preferred Securities and Common Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed will be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if at the time there is available to Ford or
the Regular Trustees on behalf of the Trust the opportunity to eliminate,
within such 90 day period, the Tax Event by taking some Ministerial Action,
Ford or the Regular Trustees on behalf of the Trust will pursue such measure in
lieu of redemption, and provided further that Ford shall have no right to
redeem the Debentures while the Regular Trustees on behalf of the Trust are
pursuing such Ministerial Action. The Common Securities will be redeemed Pro
Rata with the Preferred Securities, except if an Event of Default under the
Indenture has occurred and is continuing, the Preferred Securities will have a
priority over the Common Securities with respect to payment of the Redemption
Price.
"Tax Event" means that the Regular Trustees shall have obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax
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Opinion") to the effect that on or after ______, 1995 as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action
taken by any governmental agency or regulatory authority, which amendment or
change is enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after ______, 1995, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject to United
States federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties or other governmental
charges or (iii) interest payable by Ford to the Trust on the Debentures is
not, or within 90 days of the date thereof will not be, deductible by Ford for
United States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel experienced in
practice under the Investment Company Act that, as a result of the occurrence
of a change in law or regulation or a change in interpretation or application
of law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an Investment
Company which is required to be registered under the Investment Company Act,
which Change in 1940 Act Law becomes effective on or after ______, 1995.
On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Preferred Securities will no longer be deemed to be
outstanding and (ii) certificates representing Preferred Securities will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest equal to accrued and unpaid Distributions on, such
Preferred Securities until such certificates are presented to Ford or its agent
for transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accrued and unpaid Distributions have been paid on all
Preferred Securities for all quarterly Distribution periods terminating on or
prior to the date of redemption.
(e) If Debentures are distributed to Holders of the Preferred
Securities, Ford, pursuant to the terms of the Indenture, will use its best
efforts to have the Debentures listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed immediately prior to the
distribution of the Debentures.
(f) (i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and Common Securities (a
"Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 10 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of the
calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph (f)(i), a Redemption/Distribution
Notice shall be deemed to be given
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on the day such notice is first mailed by first class mail, postage prepaid, to
Holders of Preferred Securities and Common Securities. Each Redemption/
Distribution Notice shall be addressed to the Holders of Preferred Securities
and Common Securities at the address of each such Holder appearing in the books
and records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(ii) In the event that fewer than all the outstanding Preferred
Securities are to be redeemed (subject to adjustment to eliminate fractional
Preferred Securities), the Preferred Securities to be redeemed will be redeemed
Pro Rata from each Holder of Preferred Securities, it being understood that, in
respect of Preferred Securities registered in the name of and held of record by
DTC (or successor Clearing Agency) or any other nominee, the distribution of
the proceeds of such redemption will be made to each Clearing Agency
Participant (or person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or nominee.
(iii) If the Trust gives a Redemption/Distribution Notice in respect
of a redemption of Preferred Securities as provided in this paragraph 4 (which
notice will be irrevocable) then immediately prior to the close of business on
the redemption date, provided that Ford has paid to the Trust in immediately
available funds a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, Distributions will cease to accrue on
the Preferred Securities called for redemption, such Preferred Securities will
no longer be deemed to be outstanding and all rights of Holders of such
Preferred Securities so called for redemption will cease, except the right of
the Holders of such Preferred Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Trustees nor the Trust
shall be required to register or cause to be registered the transfer of any
Preferred Securities which have been so called for redemption. If any date
fixed for redemption of Preferred Securities is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Redemption Price in
respect of Preferred Securities is improperly withheld or refused and not paid
either by the Trust or by Ford pursuant to the Preferred Securities Guarantee,
Distributions on such Preferred Securities will continue to accrue, from the
original redemption date to the date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to the Holders of the Preferred Securities.
(v) Upon the date of dissolution of the Trust and distribution of
Debentures as a result of the occurrence of a Special Event, Preferred Security
Certificates shall be deemed to represent beneficial interests in the
Debentures so distributed, and the Preferred Securities will no longer be
deemed outstanding and may be canceled by the Regular Trustees. The Debentures
so distributed shall have an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities so distributed.
(vi) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), Ford or any of its
subsidiaries may at any time and from time to
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time purchase outstanding Preferred Securities by tender, in the open market or
by private agreement.
5. Voting Rights. (a) Except as provided under paragraph 5(b) below
and as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
If any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Institutional Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Preferred
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal
as a class and such amendment or proposal shall not be effective except with
the approval of the Holders of Securities representing a Majority in
liquidation amount of such Securities; provided, however, (A) if any amendment
or proposal referred to in clause (i) above would adversely affect only the
Preferred Securities or the Common Securities, then only the affected class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of a Majority in
liquidation amount of such class of Securities and (B) amendments to the
Declaration shall be subject to such further requirements as are set forth in
Sections 12.1 and 12.2 of the Declaration.
In the event the consent of the Institutional Trustee, as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Institutional Trustee shall vote with respect to such amendment, modification
or termination as directed by a Majority in liquidation amount of the
Securities voting together as a single class (and in the case of any other Ford
Motor Company Capital Trust holding debt securities issued under the Indenture,
voting with the holders of preferred securities of such other Ford Motor
Company Capital Trust); provided that where such amendment, modification or
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Institutional Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above,
the vote of Holders of Securities representing such specified percentage of the
aggregate liquidation amount of the Securities, or, in the case of clause (2)
above, each Holder of Securities; and provided, further, that the Institutional
Trustee shall be under no obligation to take any action in accordance with the
directions of the Holders of Securities unless the Institutional Trustee shall
have received, at the expense of the Sponsor, an opinion of nationally
recognized independent tax counsel recognized as expert in such matters to the
effect that the Trust will not be classified for United States federal income
tax purposes as an association taxable as a corporation or a partnership on
account of such action and will be treated as a grantor trust for United States
federal income tax purposes following such action.
Subject to Section 2.6 of the Declaration, and the provisions of this
and the next succeeding paragraph, the Holders of a Majority in liquidation
amount of the Preferred Securities, voting separately as a class shall have the
right to (A) on behalf of all Holders of Preferred Securities, waive any past
default that is waivable under the Declaration (subject to,
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<PAGE> 47
and in accordance with the Declaration) and (B) direct the time, method, and
place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee, as the holder of the Debentures (and in the case of any
other Ford Motor Company Capital Trust holding debt securities issued under the
Indenture, voting with the holders of preferred securities of such other Ford
Motor Company Capital Trust), to (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
exercising any trust or power conferred on the Debenture Trustee with respect
to the Debentures, (ii) waive any past default and its consequences that is
waivable under Section 5.1 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall
be due and payable; provided that where the taking of any action under the
Indenture requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal amount
of the Debentures or (2) each holder of Debentures, the Institutional Trustee
may only take such action if directed by, in the case of clause (1) above, the
vote of Holders of Preferred Securities representing such specified percentage
of the aggregate liquidation amount of the Preferred Securities, or, in the
case of clause (2) above, each Holder of Preferred Securities. The
Institutional Trustee shall not revoke, or take any action inconsistent with,
any action previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the time, method and
place of conducting any proceeding for any remedy available to the
Institutional Trustee or the Debenture Trustee as set forth above, the
Institutional Trustee shall be under no obligation to take any of the foregoing
actions at the direction of the Holders of Preferred Securities unless the
Institutional Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as expert
in such matters to the effect that the Trust will not be classified for United
States federal income tax purposes as an association taxable as a corporation
or a partnership on account of such action and will be treated as a grantor
trust for United States federal income tax purposes following such action. If
the Institutional Trustee fails to enforce its rights under the Declaration
(including, without limitation, its rights, powers and privileges as a holder
of the Debentures under the Indenture), any Holder of Preferred Securities may
upon such Holder's written request to the Institutional Trustee to enforce such
rights, institute a legal proceeding directly against Ford to enforce the
Institutional Trustee's rights under the Declaration, without first instituting
a legal proceeding against the Institutional Trustee or any other Person.
A waiver of an Indenture Event of Default by the Institutional Trustee
at the direction of the Holders of the Preferred Securities will constitute a
waiver of the corresponding Event of Default under the Declaration in respect
of the Securities.
Any required approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities of the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is to be taken,
to be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
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No vote or consent of the Holders of Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or distribute
Debentures in accordance with the Declaration.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities at such time that are owned by Ford or by any entity
directly or indirectly controlling or controlled by or under direct or indirect
common control with Ford shall not be entitled to vote or consent and shall,
for purposes of such vote or consent, be treated as if they were not
outstanding.
Holders of the Preferred Securities will have no rights to increase or
decrease the number of Trustees or to appoint, remove or replace a Trustee,
which voting rights are vested solely in the Holders of the Common Securities.
6. Pro Rata Treatment. A reference in these terms of the Preferred
Securities to any payment, distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding,
and only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
7. Ranking. The Preferred Securities rank pari passu and payment
thereon will be made Pro Rata with the Common Securities except that where an
Event of Default occurs and is continuing, the rights of Holders of Preferred
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise rank in priority to the rights of Holders
of the Common Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfer, Exchange, Method of Payments. Payment of Distributions
and payments on redemption of the Preferred Securities will be payable, the
transfer of the Preferred Securities will be registrable, and Preferred
Securities will be exchangeable for Preferred Securities of other denominations
of a like aggregate liquidation amount, at the principal corporate trust office
of the Institutional Trustee in The City of New York; provided that payment of
Distributions may be made at the option of the Regular Trustees on behalf of
the Trust by check mailed to the address of the persons entitled thereto and
that the payment on redemption of any Preferred Security will be made only upon
surrender of such Preferred Security to the Institutional Trustee.
10. Acceptance of Indenture and Preferred Guarantee. Each Holder of
Preferred Securities, by the acceptance thereof, agrees to the provisions of
(i) the Preferred Guarantee, including the subordination provisions therein and
(ii) the Indenture and the Debentures, including the subordination provisions
of the Indenture.
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11. No Preemptive Rights. The Holders of Preferred Securities shall
have no preemptive rights to subscribe to any additional Preferred Securities
or Common Securities.
12. Miscellaneous. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder without charge on written request to the Trust at its principal
place of business.
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Annex I
Certificate Number Number of Preferred Securities
B-__ _________
CUSIP NO. ____
Certificate Evidencing Preferred Securities
of
Ford Motor Company Capital Trust I
____% Trust Originated Preferred Securities
(liquidation amount $25 per Preferred Security)
Ford Motor Company Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
_________ (the "Holder") is the registered owner of _____ (______) preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the ____% Trust Originated Preferred Securities
(liquidation amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Declaration of
Trust of the Trust dated as of September __, 1995, as the same may be amended
from time to time (the "Declaration") including the designation of the terms of
Preferred Securities as set forth in Exhibit B thereto. The Preferred
Securities and the Common Securities issued by the Trust pursuant to the
Declaration represent undivided beneficial interests in the assets of the
Trust, including the Debentures (as defined in the Declaration) issued by Ford
Motor Company, a Delaware corporation ("Ford"), to the Trust pursuant to the
Indenture referred to in the Declaration. The Holder is entitled to the
benefits of the Guarantee Agreement of Ford dated as of September __ , 1995
(the "Guarantee") to the extent provided therein. The Trust will furnish a copy
of the Declaration, the Guarantee and the Indenture to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
The Holder of this Certificate, by accepting this Certificate, is
deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture and (ii) agreed to the terms of the Guarantee, including that the
Guarantee is subordinate and junior in right of payment to all other
liabilities of Ford, including the Debentures, except those made pari passu or
subordinate by their terms, and senior to all capital stock now or hereafter
issued by Ford and to any guarantee now or hereafter entered into by Ford in
respect of any of its capital stock.
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Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed this
certificate this __ day of ____, 1995.
FORD MOTOR COMPANY CAPITAL TRUST I
By:_________________________
Name:
Title: Trustee
By:_________________________
Name:
Title: Trustee
Dated:
Countersigned and Registered:
______________________________,
Transfer Agent and Registrar
By:___________________________
Authorized Signature
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for him or her.
Date: _________________________
Signature: ____________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S)
AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
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EXHIBIT C
TERMS OF COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust of Ford Motor Company Capital Trust I dated as of
September __, 1995 (as amended from time to time, the "Declaration"), the
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth below (each capitalized term
used but not defined herein having the meaning set forth in the Declaration):
1. Designation and Number. Common Securities of the Trust
with an aggregate liquidation amount in the assets of the Trust of
_________________________________ (_________) and a liquidation amount in the
assets of the Trust of $25 per Common Security, are hereby designated as "____%
Trust Originated Common Securities". The Common Security Certificates
evidencing the Common Securities shall be substantially in the form attached
hereto as Annex I, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice. The Common
Securities are to be issued and sold to Ford Motor Company ("Ford") in
consideration of $_________ in cash. In connection with the Offer and the
purchase by Ford of the Common Securities, Ford will deposit in the Trust, and
the Trust will purchase, respectively, as trust assets Debentures of Ford
having an aggregate principal amount equal to $__________, and bearing interest
at an annual rate equal to the annual Distribution rate on the Preferred
Securities and Common Securities and having payment and redemption provisions
which correspond to the payment and redemption provisions of the Preferred
Securities and Common Securities.
2. Distributions. (a) Periodic distributions payable on each
Common Security will be fixed at a rate per annum of ____% (the "Coupon Rate")
of the stated liquidation amount of $25 per Common Security. Distributions in
arrears for more than one quarter will bear interest at the rate per annum of
____% thereof (to the extent permitted by applicable law), compounded quarterly
to the extent permitted by law. The term "Distributions" as used in these terms
means such periodic cash distributions and any such interest payable unless
otherwise stated. A Distribution will be made by the Institutional Trustee only
to the extent that interest payments are made in respect of the Debentures held
by the Trust. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed in such a 30-day
month.
(b) Distributions on the Common Securities will be
cumulative, will accrue from ______, 1995 and will be payable quarterly in
arrears, on March 31, June 30, September 30 and December 31 of each year,
commencing on December 31, 1995, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Trust. In addition, holders of Common Securities will be
entitled to a cash distribution at the rate of 8.25% per annum of the
liquidation amount thereof from ________, 1995 through ______, 1995, payable on
December 31, 1995 ("Pre-Issuance Interest"). With the exception of Pre-Issuance
Interest, so long as Ford shall not be in default in the payment of interest on
the Debentures, Ford has the right under the Indenture for the Debentures to
defer payments of interest by extending the interest payment period from time
to time on the Debentures for a period not exceeding 20 consecutive quarterly
interest periods (each, an "Extension Period") and, as a consequence, quarterly
Distributions will continue to accrue with
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interest thereon (to the extent permitted by applicable law) at the rate of
____% per annum, compounded quarterly to the extent permitted by law during any
such Extension Period. Prior to the termination of any such Extension Period,
Ford may further extend such Extension Period; provided that such Extension
Period together with all such previous and further extensions thereof may not
exceed 20 consecutive quarterly interest periods and provided further that no
Extension Period may extend beyond the maturity of the Debentures. Upon the
termination of any Extension Period and the payment of all amounts then due,
Ford may commence a new Extension Period, subject to the above requirements.
Payments of accrued Distributions will be payable to Holders of Common
Securities as they appear on the books and records of the Trust on the record
date for the first payment occurring on or after the end of the Extension
Period.
(c) Distributions on the Common Securities will be payable
promptly by the Institutional Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates, which will be 15
calendar days prior to the relevant Distribution date, which record and payment
dates correspond to the record and interest payment dates on the Debentures.
Distributions payable on any Common Securities that are not punctually paid on
any Distribution payment date as a result of Ford having failed to make the
corresponding interest payment on the Debentures will forthwith cease to be
payable to the person in whose name such Common Security is registered on the
relevant record date, and such defaulted Distribution will instead be payable
to the person in whose name such Common Security is registered on the special
record date established by the Regular Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall not
be considered payable on any Distribution payment date falling within an
Extension Period unless Ford has elected to make a full or partial payment of
interest accrued on the Debentures on such Distribution payment date. Subject
to any applicable laws and regulations and the provisions of the Declaration,
each payment in respect of the Common Securities will be made as described in
paragraph 9 hereof. If any date on which Distributions are payable on the
Common Securities is not a Business Day, then payment of the Distribution
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date and the record date for
such payment should be the immediately preceding Business Day.
(d) All Distributions paid with respect to the Common
Securities and the Preferred Securities will be paid Pro Rata to the Holders
thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to Distributions
(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for under the Declaration, such
money or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event
of any voluntary or involuntary dissolution, winding-up or termination of the
Trust, the Holders of the Preferred Securities and Common Securities at the
date of the dissolution, winding-up or termination, as the case may be, will be
entitled to receive Pro Rata solely out of the assets of the Trust available
for distribution to Holders of Preferred Securities and Common Securities,
after satisfaction of liabilities to creditors, an amount equal to the
aggregate of the stated liquidation amount of $25
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per Preferred Security and Common Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, and after satisfaction of liabilities to creditors,
Debentures in an aggregate principal amount equal to the aggregate stated
liquidation amount of such Preferred Securities and Common Securities bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Preferred Securities and Common Securities, shall be
distributed Pro Rata to the Holders of the Preferred Securities and Common
Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and Common Securities shall
be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in
part, whether at maturity, upon redemption at any time or from time to time on
or after December 1, 2002, the proceeds of such repayment will be promptly
applied to redeem Pro Rata Preferred Securities and Common Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 10 nor more than 60 days'
notice, at a redemption price of $25 per Preferred and Common Security plus an
amount equal to accrued and unpaid Distributions thereon to the date of
redemption, payable in cash (the "Redemption Price"). The date of any such
repayment or redemption of Preferred Securities and Common Securities shall be
established to coincide with the repayment or redemption date of the
Debentures.
(b) The Common Securities will be entitled to be redeemed on
a Pro Rata basis with the Preferred Securities, except that if an Event of
Default has occurred and is continuing, the Preferred Securities shall have a
priority over the Common Securities with respect to the payment of the
Redemption Price. If fewer than all the outstanding Preferred Securities and
Common Securities are to be so redeemed, the Preferred Securities and the
Common Securities will be redeemed Pro Rata and the Common Securities to be
redeemed will be redeemed as described in paragraph 4(e)(ii) below. If a
partial redemption would result in the delisting of the Preferred Securities by
any national securities exchange or other organization on which the Preferred
Securities are then listed, Ford pursuant to the Indenture will only redeem
Debentures in whole and, as a result, the Trust may only redeem the Common
Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company
Event (each as hereinafter defined, and each a "Special Event") shall occur and
be continuing, the Regular Trustees shall, unless the Debentures are redeemed
in the limited circumstances described below, dissolve the Trust and, after
satisfaction of creditors, cause Debentures held by the Institutional Trustee
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having an aggregate principal amount equal to the aggregate stated liquidation
amount of and accrued and unpaid interest equal to accrued and unpaid
Distributions on, and having the same record date for payment as the Preferred
Securities and Common Securities, to be distributed to the Holders of the
Preferred Securities and Common Securities on a Pro Rata basis in liquidation
of such Holders' interests in the Trust, within 90 days following the
occurrence of such Special Event (the "90 Day Period"), provided, however, that
in the case of the occurrence of a Tax Event, as a condition of such
dissolution and distribution, the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such
matters (a "No Recognition Opinion"), which opinion may rely on any then
applicable published revenue rulings of the Internal Revenue Service, to the
effect that the Holders of the Preferred Securities will not recognize any gain
or loss for United States federal income tax purposes as a result of the
dissolution of the Trust and distribution of Debentures; and provided, further,
that, if and as long as at the time there is available to the Trust the
opportunity to eliminate, within the 90 Day Period, the Special Event by taking
some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure that has no adverse effect on
the Trust, Ford, or the Holders of the Preferred Securities ("Ministerial
Action") the Trust will pursue such measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the
Regular Trustees have received an opinion (a "Redemption Tax Opinion") of
nationally recognized independent tax counsel experienced in such matters that,
as a result of a Tax Event, there is more than an insubstantial risk that Ford
would be precluded from deducting the interest on the Debentures for United
States federal income tax purposes even if the Debentures were distributed to
the Holders of Preferred Securities and Common Securities in liquidation of
such Holder's interest in the Trust as described in this paragraph 4(c) or (ii)
the Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, Ford shall have the right
at any time, upon not less than 10 nor more than 60 days notice, to redeem the
Debentures in whole or in part for cash at the Redemption Price within 90 days
following the occurrence of such Tax Event, and promptly following such
redemption Preferred Securities and Common Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed will be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if at the time there is available to Ford or
the Regular Trustees on behalf of the Trust the opportunity to eliminate,
within such 90 day period, the Tax Event by taking some Ministerial Action,
Ford or the Regular Trustees on behalf of the Trust will pursue such measure in
lieu of redemption, and provided further that Ford shall have no right to
redeem the Debentures while the Regular Trustees on behalf of the Trust are
pursuing such Ministerial Action. The Common Securities will be redeemed Pro
Rata with the Preferred Securities, except if an Event of Default under the
Indenture has occurred and is continuing, the Preferred Securities will have a
priority over the Common Securities with respect to payment of the Redemption
Price.
"Tax Event" means that the Regular Trustees shall have
obtained an opinion of nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after ___________, 1995 as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including
the enactment of any legislation and the publication of any judicial decision
or regulatory determination), (c) any interpretation or pronouncement that
provides for a position
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with respect to such laws or regulations that differs from the theretofore
generally accepted position or (d) any action taken by any governmental agency
or regulatory authority, which amendment or change is enacted, promulgated,
issued or announced or which interpretation or pronouncement is issued or
announced or which action is taken, in each case on or after ______, 1995,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date thereof, subject to United States federal income tax
with respect to income accrued or received on the Debentures, (ii) the Trust
is, or will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges or (iii) interest
payable by Ford to the Trust on the Debentures is not, or within 90 days of the
date thereof will not be, deductible by Ford for United States federal income
tax purposes.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act Law"), there
is more than an insubstantial risk that the Trust is or will be considered an
Investment Company which is required to be registered under the Investment
Company Act, which Change in 1940 Act Law becomes effective on or after ______,
1995.
On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Common Securities will no longer be deemed to
be outstanding and (ii) any certificates representing Common Securities will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest equal to accrued and unpaid Distributions on, such Common
Securities until such certificates are presented to Ford or its agent for
transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding
Common Securities unless all accrued and unpaid Distributions have been paid on
all Common Securities for all quarterly Distribution periods terminating on or
prior to the date of redemption.
(e)(i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Preferred Securities and Common Securities
(a "Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 10 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of the
calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph (e)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed by
first class mail, postage prepaid, to Holders of Preferred Securities and
Common Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of Preferred Securities and Common Securities at the address of
each such Holder appearing in the books and records of the Trust. No defect in
the Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Common
Securities are to be redeemed, the Common Securities to be redeemed will be
redeemed Pro Rata from each Holder of Common Securities (subject to adjustment
to eliminate fractional Common Securities).
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(iii) If the Trust gives a Redemption/Distribution Notice in
respect of a redemption of Common Securities as provided in this paragraph 4
(which notice will be irrevocable) then immediately prior to the close of
business on the redemption date, provided that Ford has paid to the Trust in
immediately available funds a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, Distributions will cease to
accrue on the Common Securities called for redemption, such Common Securities
will no longer be deemed to be outstanding and all rights of Holders of such
Common Securities so called for redemption will cease, except the right of the
Holders of such Common Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Trustees nor the Trust shall be
required to register or cause to be registered the transfer of any Common
Securities which have been so called for redemption. If any date fixed for
redemption of Common Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of Common Securities
is improperly withheld or refused and not paid by the Trust, Distributions on
such Common Securities will continue to accrue, from the original redemption
date to the date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to the Holders of the Common
Securities.
(v) Upon the date of dissolution of the Trust and
distribution of Debentures as a result of the occurrence of a Special Event,
Common Security Certificates shall be deemed to represent beneficial interests
in the Debentures so distributed, and the Common Securities will no longer be
deemed outstanding and may be canceled by the Regular Trustees. The Debentures
so distributed shall have an aggregate principal amount equal to the aggregate
liquidation amount of the Common Securities so distributed.
5. Voting Rights. (a) Except as provided under paragraph
5(b) below and as otherwise required by law and the Declaration, the Holders of
the Common Securities will have no voting rights.
(b) Holders of Common Securities have the sole right under the
Declaration to increase or decrease the number of Trustees, and to appoint,
remove or replace a Trustee, any such increase, decrease, appointment, removal
or replacement to be approved by Holders of Common Securities representing a
Majority in liquidation amount of the Common Securities.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Institutional Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Common
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal
as a class and such amendment or proposal shall not be effective except with
the approval of the Holders of Securities representing a Majority in
liquidation amount of such Securities; provided, however, (A) if any amendment
or proposal referred to in
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clause (i) above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of a Majority in liquidation amount of such
class of Securities, (B) the rights of Holders of Common Securities under
Article V of the Declaration to increase or decrease the number of, and to
appoint, replace or remove, Trustees shall not be amended without the consent
of each Holder of Common Securities, and (C) amendments to the Declaration
shall be subject to such further requirements as are set forth in Sections 12.1
and 12.2 of the Declaration.
In the event the consent of the Institutional Trustee, as the
holder of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Institutional Trustee shall vote with respect to such amendment, modification
or termination as directed by a Majority in liquidation amount of the
Securities voting together as a single class; provided that where such
amendment, modification or termination of the Indenture requires the consent or
vote of (1) holders of Debentures representing a specified percentage greater
than a majority in principal amount of the Debentures or (2) each holder of
Debentures, the Institutional Trustee may only vote with respect to that
amendment, modification or termination as directed by, in the case of clause
(1) above, the vote of Holders of Securities representing such specified
percentage of the aggregate liquidation amount of the Securities, or, in the
case of clause (2) above, each Holder of Securities; and provided, further,
that the Institutional Trustee shall be under no obligation to take any action
in accordance with the directions of the Holders of the Securities unless the
Institutional Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as an
expert in such matters to the effect that the Trust will not be classified for
United States federal income tax purposes as an association taxable as a
corporation or a partnership on account of such action and will be treated as a
grantor trust for United States federal income tax purposes following such
action.
Subject to Section 2.6 of the Declaration, and the provisions
of this and the next succeeding paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class shall
have the right to (A) on behalf of all Holders of Common Securities, waive any
past default that is waivable under the Declaration (subject to, and in
accordance with the Declaration) and (B) direct the time, method, and place of
conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the Institutional
Trustee, as holder of the Debentures, to (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Debenture Trustee,
or exercising any trust or power conferred on the Debenture Trustee with
respect to the Debentures, (ii) waive any past default and its consequences
that is waivable under Section 5.1 of the Indenture, or (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable; provided that where the taking of any
action under the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Institutional Trustee may only take such action if directed by, in the case of
clause (1) above, the vote of Holders of Common Securities representing such
specified percentage of the aggregate liquidation amount of the Common
Securities, or, in the case of clause (2) above, each Holder of Common
Securities. The Institutional Trustee shall not revoke, or take any action
inconsistent with, any action previously authorized or approved by a vote of
the Holders of the Preferred Securities, and shall not take any action in
accordance with the direction of the Holders of the
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Common Securities under this paragraph if the action is prejudicial to the
Holders of Preferred Securities. Other than with respect to directing the time,
method and place of conducting any proceeding for any remedy available to the
Institutional Trustee or the Debenture Trustee as set forth above, the
Institutional Trustee shall be under no obligation to take any of the foregoing
actions at the direction of the Holders of Common Securities unless the
Institutional Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as expert
in such matters to the effect that the Trust will not be classified for United
States federal income tax purposes as an association taxable as a corporation
or a partnership on account of such action and will be treated as a grantor
trust for United States income tax purposes following such action.
Notwithstanding any other provision of these terms, each
Holder of Common Securities will be deemed to have waived any Event of Default
with respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by the
Holders of Preferred Securities as provided in the Declaration or otherwise
eliminated, and until all Events of Default with respect to the Preferred
Securities have been so cured, waived by the Holders of Preferred Securities or
otherwise eliminated, the Institutional Trustee will be deemed to be acting
solely on behalf of the Holders of Preferred Securities and only the Holders of
the Preferred Securities will have the right to direct the Institutional
Trustee in accordance with the terms of the Declaration or of the Securities.
In the event that any Event of Default with respect to the Preferred Securities
is waived by the Holders of Preferred Securities as provided in the
Declaration, the Holders of Common Securities agree that such waiver shall also
constitute the waiver of such Event of Default with respect to the Common
Securities for all purposes under the Declaration without any further act, vote
or consent of the Holders of the Common Securities.
A waiver of an Indenture Event of Default by the Institutional
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the Declaration
in respect of the Securities.
Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities of
the Trust or pursuant to written consent. The Regular Trustees will cause a
notice of any meeting at which Holders of Common Securities are entitled to
vote, or of any matter upon which action by written consent of such Holders is
to be taken, to be mailed to each Holder of record of Common Securities. Each
such notice will include a statement setting forth (i) the date of such meeting
or the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities or distribute
Debentures in accordance with the Declaration.
6. Pro Rata Treatment. A reference in these terms of the
Common Securities to any payment, distribution or treatment as being "Pro Rata"
shall mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any
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funds available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate
liquidation amount of Common Securities held by the relevant Holder relative to
the aggregate liquidation amount of all Common Securities outstanding.
7. Ranking. The Common Securities rank pari passu and
payment thereon will be made Pro Rata with the Preferred Securities except that
where an Event of Default occurs and is continuing, the rights of Holders of
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise are subordinate to the rights of Holders
of the Preferred Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfers, Exchanges, Method of Payments. Payment of
Distributions and payments on redemption of the Common Securities will be
payable, the transfer of the Common Securities will be registrable, and Common
Securities will be exchangeable for Common Securities of other denominations of
a like aggregate liquidation amount, at the principal corporate trust office of
the Institutional Trustee in The City of New York; provided that payment of
Distributions may be made at the option of the Regular Trustees on behalf of
the Trust by check mailed to the address of the persons entitled thereto and
that the payment on redemption of any Common Security will be made only upon
surrender of such Common Security to the Institutional Trustee. Notwithstanding
the foregoing, transfers of Common Securities are subject to conditions set
forth in Section 9.1(c) of the Declaration.
10. Acceptance of Indenture. Each Holder of Common
Securities, by the acceptance thereof, agrees to the provisions of the
Indenture and the Debentures, including the subordination provisions thereof.
11. No Preemptive Rights. The Holders of Common Securities
shall have no preemptive rights to subscribe to any additional Common
Securities or Preferred Securities.
12. Miscellaneous. These terms shall constitute a part of
the Declaration. The Trust will provide a copy of the Declaration and the
Indenture to a Holder without charge on written request to the Trust at its
principal place of business.
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Annex I
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities
C-1 ______
Certificate Evidencing Common Securities
of
Ford Motor Company Capital Trust I
____% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
Ford Motor Company Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that Ford Motor Company (the "Holder") is the registered owner of
_____________________________ (______) common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the ____% Trust Originated Common Securities (liquidation amount $25
per Common Security) (the "Common Securities"). The Common Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer and satisfaction of the other conditions set forth in
the Declaration (as defined below) including, without limitation Section 9.1(c)
thereof. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of Trust of the Trust dated as of September __, 1995, as
the same may be amended from time to time (the "Declaration") including the
designation of the terms of Common Securities as set forth in Exhibit C
thereto. The Common Securities and the Preferred Securities issued by the Trust
pursuant to the Declaration represent undivided beneficial interests in the
assets of the Trust, including the Debentures (as defined in the Declaration)
issued by Ford Motor Company, a Delaware corporation, to the Trust pursuant to
the Indenture referred to in the Declaration. The Trust will furnish a copy of
the Declaration and the Indenture to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture.
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Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed
this certificate this ____ day of ____, 1995.
FORD MOTOR COMPANY CAPITAL TRUST I
By: _________________________
Name:
Title: Trustee
By: _________________________
Name:
Title: Trustee
Dated:
Countersigned and Registered:
_____________________________,
Transfer Agent and Registrar
By:___________________________
Authorized Signature
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfer this Common Security
Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints _______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ____________________________
Signature: ________________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
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Exhibit 4.8
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of [ ],
1995, is executed and delivered by Ford Motor Company, a Delaware corporation
(the "Guarantor"), and [ ] as the initial Guarantee
Trustee (as defined herein) for the benefit of the Holders (as defined herein)
from time to time of the Preferred Securities (as defined herein) of Ford Motor
Company Capital Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ________, 1995 among the trustees of the Issuer
named therein, Ford Motor Company, as Sponsor, and the Holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing as of the date hereof in accordance with the Offer (as defined
herein) $_______ aggregate liquidation amount of its ___% Trust Originated
Preferred Securities (the "Preferred Securities") representing undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in Exhibit B to the Declaration;
WHEREAS, the Preferred Securities will be issued by the Issuer upon
deposit of the Guarantor's Debentures (as defined herein) with the Issuer as
trust assets; and
WHEREAS, as incentive for the Holders to exchange Series B Depositary
Shares ("Depositary Shares") representing 1/2,000 of a share of Guarantor's
Series B Preferred Stock (as defined herein) for Preferred Securities pursuant
to the Offer, the Guarantor desires to irrevocably and unconditionally agree,
to the extent set forth herein, to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the exchange of Depositary Shares
for Preferred Securities, which exchange the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE I
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
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(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing undivided
beneficial interests in the assets of the Issuer, having the terms set forth in
Exhibit C to the Declaration.
"Covered Person" means any Holder of Preferred Securities.
"Debentures" means the series of Junior Subordinated Debentures issued
by the Guarantor under the Indenture and entitled the "___% Junior Subordinated
Debentures due 2025".
"Distributions" means the periodic distributions and other payments
payable to Holders of Preferred Securities in accordance with the terms of the
Preferred Securities set forth in Exhibit B to the Declaration.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions and the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to the Preferred Securities called for redemption by the Issuer but if and only
to the extent that in each case the Guarantor has made a payment to the Trust
of interest or principal on the Debentures and (ii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer (other than in
connection with the distribution of Debentures to Holders or the redemption of
all the Preferred Securities upon the maturity or redemption of the Debentures
as provided in the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Preferred
Securities to the date of payment, to the extent the Issuer has funds available
therefor, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means [ ] until a
Successor Guarantee Trustee has been appointed and accepted such appointment
pursuant to the terms of this Guarantee Agreement, and thereafter means each
such Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder"
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shall not include the Guarantor or any entity directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, and any officers, directors, shareholders, members,
partners, employees, representatives or agents of the Guarantee Trustee.
"Indenture" means the Indenture dated as of _________, 1995 between
the Guarantor and [ ], as trustee, and the First Supplemental
Indenture thereto dated such date, pursuant to which the Debentures are to be
issued.
"Majority in liquidation amount of the Preferred Securities" means,
except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class, who are the
record owners of Preferred Securities whose liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents more than 50% of the liquidation amount of all
outstanding Preferred Securities.
"Offer" means the offer by the Issuer to exchange Preferred Securities
for outstanding Depositary Shares in consideration for the deposit by the
Guarantor of Debentures as trust assets of the Issuer, all as described in a
Prospectus dated [ ], 1995.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Securities" has the meaning set forth in the first WHEREAS
clause above.
"Redemption Price" means the amount payable on redemption of the
Preferred Securities in accordance with the terms of the Preferred Securities.
"Responsible Officer" means, with respect to the Guarantee Trustee,
the chairman of the board of directors, the president, any vice-president, any
assistant vice-president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Series A Convertible Preferred Stock" means the Series A Cumulative
Convertible Preferred Stock of the Guarantor.
"Series B Preferred Stock" means the Series B Cumulative Preferred
Stock of the Guarantor.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as a Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by. Sec. 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The application of the Trust Indenture Act to this Guarantee
Agreement shall not affect the nature of the Preferred Securities as equity
securities representing undivided beneficial interests in the assets of the
Issuer.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) The Guarantor shall provide the Guarantee Trustee with such
information as is required under Sec. 312(a) of the Trust Indenture Act at the
times and in the manner provided in Sec. 312(a).
(b) the Guarantee Trustee shall comply with its obligations under
Sec. 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year, the Guarantee Trustee shall
provide to the Holders of the Preferred Securities such reports as are required
by Sec. 313 of the Trust Indenture Act, if any, in the form, in the manner and
at the times provided by Sec. 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Sec. 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Commission
and the Holders of the Preferred Securities, as applicable, such documents,
reports and information as required by Sec. 314(a)(1)-(3) (if any) of the Trust
Indenture Act and the compliance certificates required by Sec. 314(a)(4) and
(c) of the Trust Indenture Act, any such certificates to be provided in the
form, in the manner and at the times required by Sec. 314(a)(4) and (c) of the
Trust Indenture Act (provided that any certificate to be provided pursuant to
Sec. 314(a)(4) of the Trust Indenture Act shall be provided within 120 days of
the end of each fiscal year of the Issuer).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Guarantee Agreement which relate to any of the matters
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set forth in Sec. 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given pursuant to Sec. 314(c) shall comply with Sec. 314(e) of
the Trust Indenture Act.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(b), Holders of Preferred Securities may
by vote of at least a Majority in liquidation amount of the Preferred
Securities, (A) direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon by the Guarantee Trustee or (B) on behalf of the Holders
of all Preferred Securities waive any past Event of Default and its
consequences. Upon such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
(b) The right of any Holder of Preferred Securities to receive
payment of the Guarantee Payments in accordance with this Guarantee Agreement,
or to institute suit for the enforcement of any such payment, shall not be
impaired without the consent of each such Holder.
SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of the
Holders of the Preferred Securities in accordance with Sec. 312 of the Trust
Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted which does not specifically refer to Sec. 312 of the Trust
Indenture Act, nor shall the Guarantee Trustee be held accountable by reason of
mailing any material pursuant to a request made under Sec. 312(b) of the Trust
Indenture Act.
SECTION 2.8 Conflicting Interest.
The Declaration shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first provision
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee in trust for the benefit of the Holders of the Preferred Securities.
The Guarantee Trustee shall not transfer its right, title and interest in the
Guarantee Agreement to any Person except a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee or to a Holder of Preferred Securities exercising his or her
rights pursuant to Section 5.4. The right, title and interest of the Guarantee
Trustee to the Guarantee Agreement shall vest automatically in each Person who
may hereafter be appointed as Guarantee Trustee in accordance with Article IV.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
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(b) If an Event of Default occurs and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders
of the Preferred Securities.
(c) This Guarantee Agreement and all moneys received by the Trust
hereunder in respect of the Guarantee Payments will not be subject to any
right, charge, security interest, lien or claim of any kind in favor of, or for
the benefit of that Guarantee Trustee or its agents or their creditors.
(d) The Guarantee Trustee shall after the occurrence of an Event
of Default, transmit by mail, first class postage prepaid, to the holders of
the Preferred Securities, as their names and addresses appear upon the
register, notice of all Events of Default known to the Guarantee Trustee,
unless such defaults shall have been cured before the giving of such notice;
provided that the Guarantee Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers, of the Guarantee
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of the Preferred Securities. The Guarantee Trustee
shall not be deemed to have knowledge of any default except any default as to
which the Guarantee Trustee shall have received written notice or a Responsible
Officer charged with the administration of this Guarantee Agreement shall have
obtained written notice.
(e) The Guarantee Trustee shall not resign as a Trustee unless a
Successor Guarantee Trustee has been appointed and accepted that appointment in
accordance with Article IV.
SECTION 3.2 Certain Rights and Duties of the Guarantee Trustee.
(a) The Guarantee Trustee, before the occurrence of an Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6(a)),
the Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Guarantee Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of
this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement, and no implied covenants or obligations shall be
read into this Guarantee Agreement against the Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the
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Guarantee Trustee and conforming to the requirements of
this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform
to the requirements of this Guarantee Agreement;
(ii) The Guarantee Trustee shall not be liable for any
error of judgement made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall have
proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts:
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders
of Preferred Securities as provided herein relating to the
time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising
any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if it shall have reasonable ground
for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.2(a) and (b):
(i) Whenever in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and
rely upon a certificate, which shall comply with the
provisions of Sec. 314(e) of the Trust Indenture Act,
signed by any authorized officer of the Guarantor;
(ii) The Guarantor Trustee (A) may consult with counsel (which
may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees) selected
by it in good faith and with due care and the written
advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice and opinion and
(B) shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction;
(iii) The Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and
the Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed by it in good faith and with due care;
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(iv) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Guarantee Agreement at the request or direction of any
Holders of Preferred Securities, unless such Holders shall
have offered to the Guarantee Trustee reasonable security
and indemnity against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction;
provided that nothing contained in this clause (iv) shall
relieve the Guarantee Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured
or waived) to exercise such of the rights and powers vested
in it by this Guarantee Agreement, and to use the same
degree of care and skill in this exercise, as a prudent
person would exercise or use under the circumstances in the
conduct of his or her own affairs; and
(v) Any action taken by the Guarantee Trustee or its
agents hereunder shall bind the Holders of the
Preferred Securities and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and
effective to perform any such action; and no third party
shall be required to inquire as to the authority of the
Guarantee Trustee to so act, or as to its compliance with
any of the terms and provisions of this Guarantee
Agreement, both of which shall be conclusively evidenced by
the Guarantee Trustee's or its agent's taking such action.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Qualifications.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any
State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, and
subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at
least annually, pursuant to law or to the
requirements of the supervising or examining
authority referred to above, then for the purposes of
this Section 4.1(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published.
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If at any time the Guarantee Trustee shall cease to satisfy the
requirements of clauses (i)-(ii) above, the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.2. If the
Guarantee Trustee has or shall acquire any "conflicting interest" within the
meaning of Sec. 310(b) of the Trust Indenture Act, the Guarantee Trustee and
the Guarantor shall in all respects comply with the provisions of Sec. 310(b)
of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1(a) has been
appointed and has accepted such appointment by written instrument executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
Guarantee Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold office
until his successor shall have been appointed or until its removal or
resignation.
(d) The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that no such resignation of the Guarantee
Trustee shall be effective until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1(a) has been
appointed and has accepted such appointment by instrument executed by such
Successor Guarantee Trustee and delivered to Guarantor and the resigning
Guarantee Trustee.
(e) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of a Resignation Request, the resigning Guarantee
Trustee may petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, appoint a Successor Guarantee
Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer) regardless of any defense, right of set-off or counterclaim
which the Issuer may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer to pay such amounts to
the Holders.
SECTION 5.2 Waiver of Notice.
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<PAGE> 10
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
10
<PAGE> 11
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions (other than an extension of time for payment
of Distributions that results from the extension of any interest payment period
on the Debentures), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Preferred Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances. There
shall be no obligation of the Holders to give notice to, or obtain consent of,
the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Enforcement of Guarantee.
The Guarantor and the Guarantee Trustee expressly acknowledge that (i)
this Guarantee Agreement will be deposited with the Guarantee Trustee to be
held for the benefit of the Holders; (ii) the Guarantee Trustee has the right
to enforce this Guarantee Agreement on behalf of the Holders; (iii) Holders
representing not less than a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available in respect of this Guarantee Agreement
including the giving of directions to the Guarantee Trustee, or exercising any
trust or other power conferred upon the Guarantee Trustee under this Guarantee
Agreement, and (iv) if the Guarantee Trustee fails to enforce this Guarantee
Agreement, any Holder of Preferred Securities may institute a legal proceeding
directly against the Guarantor to enforce its rights
11
<PAGE> 12
under this Guarantee Agreement, without first instituting a legal proceeding
against the Issuer, the Guarantee Trustee, or any other Person.
SECTION 5.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not merely
of collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer).
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, the Guarantor
will not declare or pay any dividend on, or redeem, purchase, acquire or make a
distribution or liquidation payment with respect to, any of its common stock or
preferred stock, or make any guarantee payments with respect thereto, if at
such time (i) the Guarantor shall be in default with respect to its Guarantee
Payments or other payment obligations hereunder, (ii) there shall have occurred
and be continuing any event of default under the Indenture or (iii) the
Guarantor shall have given notice of its selection of an Extension Period (as
defined in the Indenture) and such period, or any extension thereof, is
continuing; provided that the Guarantor will be permitted to pay dividends (and
cash in lieu of fractional shares) upon the mandatory conversion of any of its
preferred stock, including its Series A Preferred Stock, in accordance with the
terms of such stock. In addition, so long as any Preferred Securities remain
outstanding, the Guarantor (i) will remain the sole direct or indirect owner of
all of the outstanding Common Securities and shall not cause or permit the
Common Securities to be transferred except to the extent such transfer is
permitted under Section 9.1(c) of the Declaration; provided that any permitted
successor of the Guarantor under the Indenture may succeed to the Guarantor's
ownership of the Common Securities and (ii) will not take any
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<PAGE> 13
action which would cause the Issuer to cease to be treated as a grantor trust
for United States federal income tax purposes except in connection with a
distribution of Debentures as provided in the Declaration.
SECTION 6.2 Subordination.
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, including the Debentures, except those
made pari passu or subordinate by their terms, and (ii) senior to all capital
stock now or hereafter issued by the Guarantor and to any guarantee now or
hereafter entered into by the Guarantor in respect of any of its capital stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further force
and effect upon full payment of the Redemption Price of all Preferred
Securities, upon the distribution of Debentures to Holders of Preferred
Securities and Common Securities in exchange for all of the Preferred
Securities and Common Securities or upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Guarantee Agreement will continue to be effective or will
be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid with respect to the Preferred Securities or this
Guarantee Agreement.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Guarantee Agreement or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
13
<PAGE> 14
SECTION 8.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Guarantor shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by reason
of any act or omission performed or omitted by such Indemnified Person in good
faith and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by this Guarantee
Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with respect
to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced
by the Guarantor prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Guarantor of an undertaking by or on
behalf of the Indemnified Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be indemnified as authorized in
Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article Ten of the
Indenture, the Guarantor shall not assign its obligations hereunder.
SECTION 9.2 Amendments.
Except with respect to any changes which do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of not less than a Majority in liquidation amount of the Preferred Securities.
The provisions of Section 12.2 of the Declaration concerning meetings of
Holders shall apply to the giving of such approval.
SECTION 9.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
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<PAGE> 15
(a) if given to the Guarantor, to the address set forth below or
such other address as the Guarantor may give notice of to the Holders:
Ford Motor Company
The American Road
Dearborn, Michigan 48121
Facsimile No.: (313) 248-8049
Attention: Treasurer
(b) if given to the Guarantee Trustee, to the address set forth
below or such other address as the Guarantee Trustee may give notice to the
Holders:
[
]
(c) if given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4 Genders.
The masculine, feminine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 9.5 Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
subject to Section 3.1(a) is not separately transferable from the Preferred
Securities.
SECTION 9.6 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.7 Counterparts.
This Guarantee Agreement may be executed in counterparts, each of
which shall be an original; but such counterparts shall together constitute one
and the same instrument.
15
<PAGE> 16
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
FORD MOTOR COMPANY
By:____________________________
Name:
Title:
[ ],
as Guarantee Trustee
By:________________________
Name:
Title:
16
<PAGE> 1
EXHIBIT 15
Ford Motor Company
The American Road
Dearborn, Michigan
Re: Ford Motor Company Capital Trust I and Ford Motor Company Registration
Statement on Form S-4
We are aware that our reports dated April 19, 1995 and July 19, 1995
accompanying the unaudited interim financial information of Ford Motor Company
and Subsidiaries for the periods ended March 31, 1995 and 1994, and for the
periods ended June 30, 1995 and 1994, and included in the Ford Motor Company
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995 and June
30, 1995, respectively, are incorporated by reference in this Registration
Statement. Pursuant to Rule 436(c) under the Securities Act of 1933, these
reports should not be considered a part of the Registration Statement prepared
or certified by us within the meaning of Sections 7 and 11 of the Act.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
400 Renaissance Center
Detroit, Michigan 48243
September 18, 1995
<PAGE> 1
EXHIBIT 23.1
Ford Motor Company
The American Road
Dearborn, Michigan
CONSENT OF COOPERS & LYBRAND L.L.P.
Re: Ford Motor Company Capital Trust I and Ford Motor Company Registration
Statement on Form S-4
We consent to the incorporation by reference in this Registration Statement of
our report dated January 27, 1995 on our audits of the consolidated financial
statements of Ford Motor Company at December 31, 1994 and 1993, and for the
years ended December 31, 1994, 1993 and 1992, which report is included in, or
incorporated by reference in, Ford's 1994 Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
400 Renaissance Center
Detroit, Michigan 48243
September 18, 1995
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY WITH RESPECT TO REGISTRATION STATEMENTS
COVERING JUNIOR SUBORDINATED DEBENTURES, PREFERRED
SECURITIES, COMMON SECURITIES AND GUARANTEES
Each of the undersigned, a director or officer of FORD MOTOR COMPANY
(the "Company"), appoints each of J. M. Devine, D. N. McCammon, M. S.
Macdonald, J. W. Martin, Jr., J. M. Rintamaki, L. J. Ghilardi, P. J. Sherry,
Jr. and N. A. Patino, his or her true and lawful attorney and agent to do any
and all acts and things and execute any and all instruments which the attorney
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended, and any requirements of the
Securities and Exchange Commission (the "Commission") in respect thereof, in
connection with a Registration Statement or Registration Statements and any and
all amendments thereto relating to the issuance and/or sale of the
above-captioned Junior Subordinated Debentures, Preferred Securities, Common
Securities and Guarantees, as authorized at a meeting of the Board of Directors
of the Company held on September 14, 1995, including but not limited to, power
and authority to sign his or her name (whether on behalf of the Company, or
otherwise) to such Registration Statement or Registration Statements and any
amendments thereto (including post-effective amendments), or any of the
exhibits, financial statements and schedules, or the Prospectuses, filed
therewith, and to file them with the Commission. Each of the undersigned
ratifies and confirms all that any of the attorneys and agents shall do or
cause to be done by virtue hereof. Any one of the attorneys and agents shall
have, and may exercise, all the powers conferred by this instrument.
Each of the undersigned has signed his or her name as of the 14th day
of September, 1995.
/s/ Alex Trotman /s/ Colby H. Chandler
--------------------------------- --------------------------
(Alex Trotman) (Colby H. Chandler)
/s/ Michael D. Dingman /s/ Edsel B. Ford II
--------------------------------- ----------------------------
(Michael D. Dingman) (Edsel B. Ford II)
/s/ William Clay Ford /s/ William Clay Ford, Jr.
--------------------------------- ---------------------------
(William Clay Ford) (William Clay Ford, Jr.)
/s/ Irvine O. Hockaday, Jr.
--------------------------------- ----------------------------
(Roberto C. Goizueta) (Irvine O. Hockaday, Jr.
<PAGE> 2
- 2 -
/s/ Marie-Josee Kravis /s/ Drew Lewis
---------------------------------- ----------------------------
(Marie-Josee Kravis) (Drew Lewis)
/s/ Ellen R. Marram /s/ Kenneth H. Olsen
---------------------------------- ----------------------------
(Ellen R. Marram) (Kenneth H. Olsen)
/s/ Carl E. Reichardt /s/ Louis R. Ross
---------------------------------- ----------------------------
(Carl E. Reichardt) (Louis R. Ross)
/s/ Clifton R. Wharton, Jr. /s/ John M. Devine
---------------------------------- ----------------------------
(Clifton R. Wharton, Jr.) (John M. Devine)
/s/ Murray L. Reichenstein
----------------------------------
(Murray L. Reichenstein)
<PAGE> 3
POWER OF ATTORNEY WITH RESPECT TO REGISTRATION STATEMENTS
COVERING JUNIOR SUBORDINATED DEBENTURES, PREFERRED
SECURITIES, COMMON SECURITIES AND GUARANTEES
The undersigned, the Director, Accounting and the principal accounting
officer of FORD MOTOR COMPANY (the "Company"), appoints each of J. M. Devine,
D. N. McCammon, M. S. Macdonald, J. W. Martin, Jr., J. M. Rintamaki, L. J.
Ghilardi, P. J. Sherry, Jr. and N. A. Patino, his true and lawful attorney and
agent to do any and all acts and things and execute any and all instruments
which the attorney and agent may deem necessary or advisable in order to enable
the Company to comply with the Securities Act of 1933, as amended, and any
requirements of the Securities and Exchange Commission (the "Commission") in
respect thereof, in connection with a Registration Statement or Registration
Statements and any and all amendments thereto relating to the issuance and/or
sale of the above-captioned Junior Subordinated Debentures, Preferred
Securities, Common Securities and Guarantees, as authorized at a meeting of the
Board of Directors of the Company held on September 14, 1995, including but not
limited to, power and authority to sign his name (whether on behalf of the
Company, or otherwise) to such Registration Statement or Registration
Statements and any amendments thereto (including post-effective amendments), or
any of the exhibits, financial statements and schedules, or the Prospectuses,
filed therewith, and to file them with the Commission. The undersigned
ratifies and confirms all that any of the attorneys and agents shall do or
cause to be done by virtue hereof. Any one of the attorneys and agents shall
have, and may exercise, all the powers conferred by this instrument.
The undersigned has signed his name as of the 19th day of September,
1995.
/s/ Daniel R. Coulson
---------------------
Daniel R. Coulson
