<PAGE> 1
REGISTRATION STATEMENT NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FORD MOTOR CREDIT COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
38-1612444
(I.R.S. EMPLOYER IDENTIFICATION NO.)
THE AMERICAN ROAD, DEARBORN, MICHIGAN 48121 (313) 322-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
J. D. BRINGARD, ESQ.
FORD MOTOR CREDIT COMPANY
THE AMERICAN ROAD
DEARBORN, MICHIGAN 48121
(313) 322-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING
BOX. / /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON
A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. /X/
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
TITLE OF EACH PROPOSED PROPOSED
CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
<S> <C> <C> <C> <C>
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Debt Securities.............. $6,000,000,000 100%* $6,000,000,000* $2,068,980
</TABLE>
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* Estimated solely for the purpose of determining the amount of the registration
fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT 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, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
PURSUANT TO RULE 429 OF THE GENERAL RULES AND REGULATIONS UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, THIS REGISTRATION STATEMENT ALSO SERVES AS
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 33-50295. THE
PROSPECTUS WHICH IS A PART OF THIS REGISTRATION STATEMENT IS A COMBINED
PROSPECTUS RELATING ALSO TO REGISTRATION STATEMENT NO. 33-50295.
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<PAGE> 2
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, DATED AUGUST , 1994
FORD MOTOR CREDIT COMPANY
DEBT SECURITIES
Ford Credit, in September 1993 and August 1994, registered with the
Securities and Exchange Commission $4,000,000,000 and $6,000,000,000
respectively of aggregate principal amounts of its Debt Securities consisting of
notes and/or debentures denominated in United States dollars or any other
currency or currencies, to be offered from time to time in one or more series,
on terms to be determined at or prior to the time of sale. In addition to the
$6,000,000,000 principal amount of Debt Securities registered in August 1994
pursuant to the Registration Statement of which this Prospectus is a part, the
principal amount of Debt Securities covered by this Prospectus includes
$300,000,000 principal amount of the Debt Securities registered in September
1993. The Prospectus Supplement accompanying this Prospectus sets forth, with
respect to the particular series of Debt Securities for which this Prospectus
and the Prospectus Supplement are being delivered, the specific title, the
aggregate principal amount, the authorized denominations, the currencies of
issue and payment, the initial public offering price, the maturity, the interest
rate or rates (which may be either fixed or variable), if any, and/or method of
determination thereof, the time of payment of any interest, any redemption,
extension or early repayment terms, any provision for sinking fund payments, the
net proceeds to Ford Credit, the form of Debt Securities and other specific
terms relating to such series of Debt Securities.
Ford Credit may sell the Debt Securities to or through underwriters, and
also may sell the Debt Securities directly to other purchasers or through
agents. See "Plan of Distribution". In addition, the Debt Securities may be sold
to dealers at the applicable price to the public set forth in the Prospectus
Supplement relating to a particular series of Debt Securities who later resell
to investors. Such dealers may be deemed to be "underwriters" within the meaning
of the Securities Act of 1933, as amended (the "Securities Act"). If any agents
of Ford Credit, or any underwriters, are involved in the sale of any Debt
Securities, the names of such agents or underwriters and any applicable
commissions or discounts are set forth in the accompanying Prospectus
Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COM-
MISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPEC-
TUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1994.
<PAGE> 3
AVAILABLE INFORMATION
FORD MOTOR CREDIT COMPANY ("FORD CREDIT") AND FORD MOTOR COMPANY ARE
SUBJECT TO THE INFORMATIONAL REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934
AND IN ACCORDANCE THEREWITH FILE REPORTS AND OTHER INFORMATION WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION"). AS USED HEREIN OR IN THE
PROSPECTUS SUPPLEMENT, "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: 7 WORLD TRADE CENTER, 13TH FLOOR,
NEW YORK, NEW YORK 10048 AND NORTHWEST ATRIUM CENTER, 500 WEST MADISON STREET,
SUITE 1400, CHICAGO, ILLINOIS 60661. 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 REPORTS AND OTHER INFORMATION
CONCERNING FORD CREDIT AND FORD CAN ALSO BE INSPECTED AT THE OFFICES OF THE NEW
YORK STOCK EXCHANGE, INC., 20 BROAD STREET, NEW YORK, NEW YORK 10005.
Ford Credit has filed with the Commission a Registration Statement under
the Securities Act with respect to the Debt Securities offered hereby. This
Prospectus and the Prospectus Supplement do not contain all the information set
forth in the Registration Statement and the exhibits and schedules thereto,
certain portions of which have been omitted pursuant to 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.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Ford Credit's Annual Report on Form 10-K for the year ended December 31,
1993 (the "1993 10-K Report"), Ford Credit's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1994 (the "First Quarter 10-Q Report") and June 30,
1994 (the "Second Quarter 10-Q Report") and Ford Credit's Current Reports on
Form 8-K dated January 11, 1994, February 11, 1994, February 25, 1994, March 18,
1994, April 14, 1994, May 11, 1994, June 27, 1994 and August 22, 1994 are
incorporated in this Prospectus by reference. All documents filed by Ford Credit
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of this Prospectus and prior to the termination of the
offering of the Debt Securities shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the date of filing such
documents. Such reports include, and such documents may include, information
concerning Ford, as well as Ford Credit.
FORD CREDIT UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING
ANY BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT HAVE 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 AND THE PROSPECTUS
SUPPLEMENT, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. WRITTEN OR TELEPHONIC
REQUESTS FOR SUCH DOCUMENTS SHOULD BE DIRECTED TO FORD MOTOR CREDIT COMPANY, THE
AMERICAN ROAD, DEARBORN, MICHIGAN 48121, ATTENTION: PUBLIC AFFAIRS DEPARTMENT
(TELEPHONE 313-594-1096).
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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 940-488-0545).
2
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INFORMATION CONCERNING FORD CREDIT
Ford Credit was incorporated in Delaware in 1959 and is a wholly-owned
subsidiary of Ford. As used herein "Ford Credit" refers to Ford Motor Credit
Company and its subsidiaries unless the context otherwise requires.
Ford Credit provides wholesale financing and capital loans to franchised
Ford Motor Company vehicle dealers and other dealers associated with such
dealers and purchases retail installment sale contracts and retail leases from
them. Ford Credit also makes loans to vehicle leasing companies, the majority of
which are affiliated with such dealers. In addition, wholly-owned subsidiaries
of Ford Credit provide these financing services to other vehicle dealers. More
than 85% of all new vehicles financed by Ford Credit are manufactured by Ford or
its affiliates. In addition to vehicle financing, Ford Credit makes loans to
affiliates of Ford, finances certain receivables of Ford and its subsidiaries,
and offers diversified financing services which are managed by USL Capital
Corporation ("USL Capital"), a wholly-owned subsidiary of Ford Holdings, Inc.
("Ford Holdings"). Ford Credit also manages the insurance business of The
American Road Insurance Company ("American Road"), a wholly-owned subsidiary of
Ford Holdings. Ford Credit also is a significant equity participant in Ford
Holdings whose primary activities are consumer and commercial financing
operations, insurance underwriting and equipment leasing.
The mailing address of Ford Credit's executive offices is The American
Road, Dearborn, Michigan 48121, United States of America. The telephone number
of such offices is (313) 322-3000.
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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.
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3
<PAGE> 5
FORD MOTOR CREDIT COMPANY AND SUBSIDIARIES
SELECTED FINANCIAL DATA
(DOLLAR AMOUNTS IN MILLIONS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30
---------------------- YEARS ENDED DECEMBER 31
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1994 1993 1993 1992 1991
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<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Total revenue.................. $ 4,850.6 $ 4,013.7 $ 8,338.4 $ 7,073.3 $ 7,002.3
Interest expense............... 1,605.6 1,443.2 2,919.3 3,076.5 3,791.8
Provision for credit losses.... 132.3 152.5 270.2 418.0 577.9
Income before income taxes and
cumulative effects of
changes in accounting
principles.................. 1,029.7 945.7 1,875.0 1,323.2 1,075.1
Cumulative effects of changes
in accounting principles.... -- -- -- 146.5 --
Net income..................... 667.4 621.3 1,193.8 1,038.7 748.8
Dividends
Cash........................ -- -- (250.0) (600.0) (650.0)
Stock of Ford Holdings...... -- -- -- (200.0) (316.0)
Memo:
Net credit losses amount....... $ 88.8 $ 105.4 $ 228.4 $ 342.6 $ 528.9
As percentage of average total
finance receivables
outstanding (annualized)*... 0.24% 0.34% 0.35% 0.60% 0.92%
BALANCE SHEET DATA
Net investment, operating
leases...................... $16,567.9 $10,015.8 $12,600.9 $ 7,747.2 $ 4,345.5
========= ========= ========= ========= =========
Finance receivables, net....... $55,167.8 $49,867.5 $50,714.1 $46,602.5 $46,481.4
========= ========= ========= ========= =========
Capital
Short-term debt............. $30,053.5 $24,638.6 $25,507.1 $22,995.7 $19,873.7
Long-term debt (including
current portion).......... 35,567.8 31,062.8 33,363.1 26,913.7 28,160.2
Stockholder's equity........ 6,364.0 5,484.9 5,774.7 4,882.9 4,689.9
--------- --------- --------- --------- ---------
Total capital............. $71,985.3 $61,186.3 $64,644.9 $54,792.3 $52,723.8
========= ========= ========= ========= =========
</TABLE>
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* Includes net investment in operating leases.
SECOND QUARTER 1994 RESULTS OF OPERATIONS
Ford Credit's consolidated net income for the second quarter of 1994 was
$368 million, up $62 million or 20% compared with $306 million in the second
quarter of 1993. Income from financing operations was $317 million, up $49
million or 18% from the same period a year ago. Equity in net income of
affiliated companies, primarily Ford Holdings, was $51 million compared with $38
million in the same period a year ago.
Compared with results from a year ago, financing profits in the second
quarter of 1994 primarily reflected a higher level of earning assets, gains ($43
million) from the sale of Ford Credit's investment in Manheim Auctions, Inc. and
from the sale of receivables, as well as favorable credit loss performance,
partially offset by lower net interest margins. The higher level of earning
assets reflected an increase in operating leases, and retail and wholesale
financing. Lower credit losses primarily reflected lower losses per repossessed
unit and fewer repossessions. The lower net interest margins primarily reflected
the effect of lower interest rates on finance receivables and operating leases.
4
<PAGE> 6
Total gross finance receivables and net investment in operating leases at
June 30, 1994 were $77.6 billion, up $11.9 billion (18%) from a year earlier.
The increase primarily reflected higher levels of operating leases and retail
installment sale receivables. Depreciation expense on operating leases in the
second quarter of 1994 was $935 million, up $302 million or 48% compared with
the second quarter of 1993. The increase reflected the higher levels of
operating leases and was more than offset by higher revenue earned on the lease
contracts.
During the second quarter of 1994, Ford Credit financed 35.8% of all new
cars and trucks sold by Ford Motor Company dealers in the United States,
compared with 37.7% in the second quarter of 1993. The decrease primarily
resulted from lower levels of daily rental car financing. Ford Credit provided
retail financing for 626,000 new and used vehicles in the United States, up 5%
from a year ago. Ford Credit also provided wholesale financing for 82.3% of Ford
Motor Company factory sales to U.S. car and truck dealers during the quarter,
compared with 82.0% in the same period a year ago.
FIRST HALF 1994 RESULTS OF OPERATIONS
For the first half of 1994, Ford Credit's consolidated net income was $667
million, up $46 million from $621 million in the first half of 1993. Income from
financing operations was $562 million, up $28 million or 5% from the same period
a year ago. Equity in net income of affiliated companies was $105 million
compared with $87 million in 1993. The improvement in financing profits
primarily resulted from higher levels of earning assets, a one-time gain from
the sale of Ford Credit's investment in Manheim Auctions, Inc., and lower credit
losses, partially offset by lower net interest margins, and lower gains from the
sale of receivables. Depreciation expense in the first half of 1994 was $1,744
million, up $561 million or 47% compared with the first half of 1993. The
increase reflected the higher levels of operating leases and was more than
offset by higher revenue earned on the lease contracts. During the first half of
1994, Ford Credit provided retail financing for 37.1% of all new cars and trucks
sold by Ford Motor Company dealers in the United States, compared with 38.4% in
the same period a year ago. Ford Credit provided U.S. retail financing for
1,210,000 new and used vehicles compared with 1,097,000 vehicles in the first
half of 1993. Ford Credit also provided wholesale financing for 81.0% of Ford
Motor Company factory sales to U.S. car and truck dealers during the first half
of 1994, compared with 80.5% in the same period last year.
1993 RESULTS OF OPERATIONS
Ford Credit's consolidated net income in 1993 was $1,194 million, up $155
million or 15% from 1992. Excluding a one-time gain resulting from the net
effect of the adoption of new accounting standards for income taxes and
postretirement benefits in 1992, net income was up $302 million or 34% from a
year ago. The following comparison of 1993 results with 1992 results excludes
the one-time net gain associated with the accounting changes.
Net income from financing operations was $996 million, up $259 million or
35% from the prior year. The increase in financing profits was more than
accounted for by higher financing volumes, lower credit losses and higher net
income from gains on sales of retail automotive receivables, partially offset by
the increase in U.S. income taxes and lower net interest margins.
Lower credit losses reflect lower losses per repossession and fewer
repossessions. Actual credit losses were $228 million (0.35% of average finance
receivables including net investment in operating leases) compared with $343
million (0.60%) in 1992. Ford Credit released a portion of the loss reserves
reflecting the continued improvement in actual credit loss experience. The
credit loss coverage ratio for 1993 was 4.0 compared with 2.7 in the prior year.
The decline in net interest margins, including depreciation on operating leases,
reflects primarily the decline in net U.S. borrowing rates from 6.3% in 1992 to
5.3% in 1993, more than offset by lower yields on finance receivables and net
investment in operating leases.
5
<PAGE> 7
For 1993, equity in net income of affiliated companies (primarily Ford
Holdings) was $198 million, up $43 million from 1992. The increase reflected
higher Ford Holdings net income available to common shareholders, partially
offset by a reduction in Ford Credit's ownership of Ford Holdings common stock
in 1992. The reduction in ownership was the result of a dividend paid in 1992 to
Ford in the form of Ford Holdings common stock. At December 31, 1993, Ford
Credit owned about 45% of Ford Holdings common stock, representing about 34% of
the voting power.
Total gross finance receivables and net investment in operating leases at
December 31, 1993 were $69.6 billion, up $9.4 billion (16%) from a year earlier.
The higher financing volume reflects primarily an increase in short-term
operating leases and higher wholesale receivables. Depreciation expense on
operating leases in 1993 was $2,676 million, up $1,023 million or 62% from 1992.
The increase reflected the higher levels of operating leases and was more than
offset by higher revenue earned on the lease contracts.
For 1993, Ford Credit financed 38.5% of all new cars and trucks sold by
Ford Motor Company dealers in the U.S. compared with 37.7% in 1992. Ford Credit
provided retail financing for 2,246,000 new and used vehicles in the United
States. Ford Credit provided wholesale financing for 81.4% of Ford Motor Company
U.S. factory sales in 1993 compared with 77.6% in 1992.
LIQUIDITY AND CAPITAL RESOURCES
Ford Credit relies heavily on its ability to raise substantial amounts of
funds. These funds are obtained primarily by sales of commercial paper and
issuance of term debt. Funds also are provided by retained earnings and sales of
receivables. The level of funds can be affected by certain transactions with
Ford, such as capital contributions, interest supplements and other support
costs from Ford for vehicles financed and leased by Ford Credit under Ford
sponsored special financing and leasing programs, and dividend payments, and the
timing of payments for the financing of dealers' wholesale inventories and for
income taxes. Ford Credit's ability to obtain funds is affected by its debt
ratings, which are closely related to the outlook for, and financial condition
of, Ford, and the nature and availability of support facilities, such as
revolving credit and receivables sales agreements. In addition, Ford Credit from
time to time sells its receivables in public offerings or private placements.
For additional information regarding liquidity and capital resources, see Item
1--Business--"Business of Ford Credit--Borrowings and Other Sources of Funds" in
the 1993 10-K Report, and see the First Quarter 10-Q Report and the Second
Quarter 10-Q Report. For additional information regarding Ford Credit's
association with Ford, see Item 1
- --Business--"Certain Transactions with Ford and Affiliates" in the 1993 10-K
Report.
6
<PAGE> 8
INFORMATION CONCERNING 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 manufacture,
assembly and sale of cars and trucks and related parts and accessories. The
Financial Services segment is comprised of the following subsidiaries: Ford
Credit, Ford Credit Europe plc, Ford Holdings, Associates First Capital
Corporation ("The Associates"), American Road, First Nationwide Financial
Corporation ("First Nationwide"), The Hertz Corporation ("Hertz") and USL
Capital. The activities of these subsidiaries include financing, insurance
operations, savings and loan operations and vehicle and equipment leasing.
7
<PAGE> 9
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
---------------------- ------------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
-------- -------- -------- -------- --------- -------- ---------
(IN MILLIONS EXCEPT PER SHARE AND UNIT SALES AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF INCOME
INFORMATION
Automotive
Sales................................ $ 54,445 $ 47,950 $ 91,568 $ 84,407 $ 72,051 $ 81,844 $ 82,879
Operating income/(loss).............. 3,525 1,293 1,432 (1,775) (3,769) 316 4,252
Income/(loss) before cumulative
effects of changes in accounting
principles......................... 2,138 571 940 (1,534) (3,186) 99 3,175
Financial Services
Revenues............................. 9,729 8,232 16,953 15,725 16,235 15,806 13,267
Income before income taxes and
cumulative effects of changes in
accounting principles.............. 1,107 1,324 2,712 1,825 1,465 1,221 874
Income before cumulative effects of
changes in accounting principles... 477 776 1,589 1,032 928 761 660
Total Ford
Income/(loss) before cumulative
effects of changes in accounting
principles......................... 2,615 1,347 2,529 (502) (2,258) 860 3,835
Cumulative effects of changes in
accounting principles.............. -- -- -- (6,883) -- -- --
Net income/(loss).................... 2,615 1,347 2,529 (7,385) (2,258) 860 3,835
Amounts Per Share of Common Stock and
Class B Stock After Preferred Stock
Dividends***
Income/(loss) before cumulative
effects of changes in accounting
principles......................... 2.47 1.23 2.27 (0.73) (2.40) 0.93 4.11
Cumulative effects of changes in
accounting principles.............. -- -- -- (7.08) -- -- --
-------- -------- -------- -------- --------- -------- ---------
Income/(loss) assuming no dilution... 2.47 1.23 2.27 (7.81) (2.40) 0.93 4.11
Income/(loss) assuming full
dilution........................... 2.20 1.13 2.10 (7.81) (2.40) 0.92 4.06
Cash dividends....................... 0.425 0.40 0.80 0.80 0.98 1.50 1.50
CONSOLIDATED BALANCE SHEET INFORMATION
Automotive
Total assets......................... 68,048 59,524 61,737 57,170 52,397 50,823 45,819
Debt payable within one year......... 156 763 932 1,249 2,580 2,849 2,537
Long-term debt--noncurrent portion... 7,107 7,117 7,084 7,068 6,539 4,553 1,137
Financial Services
Total assets......................... 142,031 132,344 137,201 123,375 122,032 122,839 115,074
Debt................................. 116,312 97,408 103,960 90,188 88,295 88,117 81,734
Deposit accounts*.................... 0 12,136 10,549 14,030 16,882 17,893 17,642
Total Ford
Total assets......................... 210,079 191,868 198,938 180,545 174,429 173,663 160,893
Debt (incl. deposit accounts)........ 123,575 117,424 122,525 112,535 114,295 113,412 103,050
Stockholders' equity**............... 18,422 15,683 15,574 14,753 22,690 23,238 22,728
Cash dividends....................... 569 545 1,086 977 927 1,389 1,404
OTHER DATA
Total Ford
Capital expenditures................. 3,601 2,946 6,814 5,790 5,847 7,258 6,767
Depreciation and amortization of
special tools...................... 4,370 3,665 7,468 6,756 5,778 4,880 4,229
Worldwide factory unit sales
of cars, trucks and tractors
(in thousands)..................... 3,483 3,206 5,964 5,764 5,359 5,872 6,408
</TABLE>
- ------------
* Deposit accounts relate to First Nationwide.
** The cumulative effects of changes in accounting principles reduced equity
by $6,883 million in 1992.
*** Share data have been restated to reflect the 2-for-1 stock split that
became effective June 6, 1994.
8
<PAGE> 10
FINANCIAL REVIEW OF FORD
SECOND QUARTER 1994 RESULTS OF OPERATIONS
Overview
Ford earned $1,711 million, or $1.63 per share of Common and Class B Stock,
in the second quarter of 1994. This compares with $775 million, or $0.72 per
share, in the second quarter of 1993. Fully diluted earnings per share were
$1.44 in the second quarter of 1994, compared with $0.65 a year ago. Ford's
worldwide sales and revenues were $33.8 billion, up $4.4 billion from a year
ago. Worldwide factory unit sales of cars and trucks were 1,811,000, up 136,000
units or 8%. Stockholders' equity was $18.4 billion at June 30, 1994.
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. Earnings per
share for prior periods have been restated to reflect the stock split.
Automotive Operations
Ford's worldwide Automotive operations earned $1,183 million in the second
quarter of 1994 on sales of $28.4 billion, compared with earnings of $395
million on sales of $25.3 billion a year ago.
In the U.S., Ford's Automotive operations earned $907 million, compared
with $367 million a year ago. The improvement reflected higher unit volume (as a
result of higher truck sales) and improved margins.
In the second quarter of 1994, the seasonally-adjusted annual selling rate
for the U.S. car and truck industry was 15.3 million units compared with 14.6
million in the second quarter of 1993. Ford's car market share was 21.5% in the
second quarter of 1994, up 1/10 of a point from a year ago. Ford's truck share
was 30%, down 2/10 of a point from a year ago. Ford's combined car and truck
share was 25%, unchanged from a year ago.
Outside the U.S., Automotive operations earned $276 million in the second
quarter of 1994, compared with $28 million a year ago. The improvement reflected
primarily higher unit volume in Europe, where Automotive operations (excluding
Jaguar) earned $244 million in the second quarter of 1994, compared with a loss
of $66 million a year ago. Earnings were lower in Latin America, where business
conditions historically have been volatile and subject to rapid change.
In the second quarter of 1994, the seasonally-adjusted annual selling rate
for the European car and truck industry was 13.1 million units, compared with
12.3 million a year ago. Ford's car share was 11.6% in the second quarter of
1994, up 5/10 of a point from a year ago. Ford's truck share was 14.8%, up 2.1
points.
Financial Services Operations
Ford's Financial Services operations earned $528 million in the second
quarter of 1994, compared with $380 million in the second quarter of 1993. The
increase resulted primarily from improved results at Ford Credit and The
Associates, the consolidation of results for Hertz, and non-recurrence of losses
at First Nationwide.
For a discussion of Ford Credit's results of operations in the second
quarter of 1994, see "Ford Motor Credit Company and Subsidiaries -- Selected
Financial Data -- Second Quarter 1994 Results of Operations." In addition,
international operations managed by Ford Credit earned $50 million in the second
quarter of 1994, equal to a year ago.
The Associates earned $121 million in the U.S. in the second quarter of
1994, compared with $111 million a year ago. The increase reflected higher
levels of earning assets and improved net interest margins. In addition,
international operations managed by The Associates earned $21 million in the
second quarter of 1994, compared with $10 million a year ago.
9
<PAGE> 11
On March 8, 1994, Ford purchased from Commerzbank Aktiengesellschaft, a
German bank, additional shares of common stock of Hertz aggregating 5% of the
total outstanding voting stock, thereby bringing Ford's ownership of the total
voting stock of Hertz to 54% from 49%. On April 29, 1994, Ford acquired 20% of
Hertz' common stock from Park Ridge Limited Partnership, and Hertz redeemed the
common stock (26%) and preferred stock of Hertz owned by AB Volvo for $145
million; these transactions resulted in Hertz becoming a wholly-owned subsidiary
of Ford. In addition, a $150 million subordinated promissory note of Hertz held
by Ford Credit was exchanged for $150 million of preferred stock of Hertz. Hertz
earned $26 million in the second quarter of 1994, compared with $6 million a
year ago (reflected in Ford's results on an equity basis).
USL Capital earned $27 million in the second quarter of 1994, compared with
$20 million a year ago. American Road earned $13 million in the second quarter
of 1994, compared with $16 million in the same period in 1993.
On April 14, 1994, an agreement was entered into for the sale of
substantially all of the assets of First Nationwide Bank to First Madison Bank,
referred to on page 11 of the First Quarter 10-Q Report. The transaction, which
is subject to federal regulatory approvals, is expected to be completed in the
fourth quarter of 1994. In the second quarter of 1993, First Nationwide incurred
a loss of $18 million.
FIRST HALF 1994 RESULTS OF OPERATIONS
Overview
Ford earned $2,615 million, or $2.47 per share of Common and Class B Stock,
in the first half of 1994. Results included a charge to net income of $440
million related to the sale of First Nationwide Bank to First Madison Bank
(discussed above). In the first half of 1993, Ford earned $1,347 million, or
$1.23 per share. Fully diluted earnings per share were $2.20, compared with
$1.13 a year ago. Ford's worldwide sales and revenues were $64.2 billion in the
first half of 1994, up $8 billion from a year ago. Worldwide factory unit sales
of cars and trucks were 3,483,000, up 277,000 or 8%.
Automotive Operations
Ford's worldwide Automotive operations earned $2,138 million in the first
half of 1994, compared with $571 million in the first half of 1993. In the U.S.,
Ford's Automotive operations earned $1,742 million, compared with $480 million a
year ago. The improvement reflected higher unit volume (as a result of higher
industry sales) and improved margins.
In the first half of 1994, the seasonally-adjusted annual selling rate for
the U.S. car and truck industry was 15.5 million units, compared with 14 million
a year ago. Ford's car share was 21.6% in the first half of 1994, down 7/10 of a
point from a year ago. The decline from a year ago reflected lower shares for
Tempo and Topaz. Ford's truck share was 29.7%, unchanged from a year ago. Ford's
combined car and truck share was 24.9%, down 4/10 of a point. For the full year,
Ford projects U.S. industry sales of about 15.5 million cars and trucks in 1994,
compared with 14.2 million units in 1993.
Outside the U.S., Automotive operations earned $396 million in the first
half of 1994, compared with $91 million a year ago. The improvement reflected
primarily higher unit volume, lower manufacturing costs, and improved margins in
Europe. Ford's European Automotive operations (excluding Jaguar) earned $352
million in the first half of 1994, compared with a loss of $47 million a year
ago.
In the first half of 1994, the seasonally-adjusted annual selling rate for
the European car and truck industry was 13.1 million units, compared with 12.4
million units a year ago. Ford's car share was 11.8%, up 3/10 of a point from a
year ago. Ford's truck share was 14.7%, down 1/10 of a point from a year ago.
For the full year, Ford projects European industry sales of about 13 million
units in 1994, compared with 12.5 million units in 1993.
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<PAGE> 12
Financial Services Operations
Ford's Financial Services operations earned $477 million in the first half
of 1994, compared with $776 million in the first half of 1993. The decline was
more than explained by the charge to net income of $440 million related to the
sale of First Nationwide Bank. Higher earnings at Ford Credit and The Associates
and the consolidation of results for Hertz were partial offsets.
For a discussion of Ford Credit's results of operations in the first half
of 1994, see "Ford Motor Credit Company and Subsidiaries -- Selected Financial
Data -- First Half 1994 Results of Operations." International operations managed
by Ford Credit earned $113 million in the first half of 1994, compared with $97
million a year ago.
The Associates earned $249 million in the U.S. in the first half of 1994,
compared with $222 million a year ago. The improvement reflected primarily the
same factors as those described in the discussion of second quarter results of
operations. In addition, international operations managed by The Associates
earned $39 million in the first half of 1994, compared with $20 million a year
ago.
Hertz earned $25 million in the first half of 1994, compared with $3
million a year ago (reflected in Ford's results on an equity basis).
USL Capital's net income in the first half of 1994 was $48 million,
compared with $37 million a year ago. American Road earned $30 million in the
first half of 1994, compared with $39 million a year ago.
First Nationwide incurred a loss of $484 million in the first half of 1994,
including a charge of $440 million related to the sale of First Nationwide Bank.
First Nationwide incurred a loss of $35 million in the first half of 1993.
LIQUIDITY AND CAPITAL RESOURCES
Automotive Operations
Cash and marketable securities of Ford's Automotive operations were $13.7
billion at June 30, 1994, up $3.9 billion from December 31, 1993. The amount of
cash and marketable securities is expected to decline during the second half of
the year because of normal new-model changeover and launch and higher capital
spending (discussed below). Ford paid $569 million in cash dividends on its
Common Stock, Class B Stock, and Preferred Stock during the first six months of
1994.
Automotive capital expenditures were $3.5 billion in the first six months
of 1994, compared with $2.9 billion 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 non-product spending. The higher product spending
reflects a record pace of new-model introductions, while non-product spending
reflects efforts to improve efficiency and quality and increase capacity for
selected components and vehicles.
Automotive debt at June 30, 1994 totaled $7.3 billion, which was 28% of
total capitalization (stockholders' equity and Automotive debt), compared with
$8 billion, or 34% of total capitalization, at year-end 1993. The decrease in
total debt is primarily the result of lower levels of short-term borrowings.
At June 30, 1994, Ford had long-term contractually committed credit
agreements in the U.S. under which $4.8 billion is available from various banks
at least through June 30, 1999. The entire $4.8 billion may be used, at Ford's
option, by either Ford or Ford Credit. As of June 30, 1994, these facilities
were unused. At July 1, 1994, these credit agreements were increased to $5.9
billion.
Outside the U.S., Ford has additional long-term contractually committed
credit-line facilities of approximately $2.4 billion. These facilities are
available in varying amounts from 1994 through 1999; less than 1% had been used
at June 30, 1994.
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<PAGE> 13
Financial Services Operations
Financial Services' cash and investments in securities totaled $8.2 billion
at June 30, 1994, down $2.6 billion from December 31, 1993. The decline
reflected primarily the reclassification of First Nationwide's net assets to
"other assets" as a result of the pending sale.
Net receivables and lease investments were $120.9 billion at June 30, 1994,
up $1.4 billion from December 31, 1993. The increase reflected continued growth
in earning assets at Ford Credit and The Associates, offset partially by the
reclassification of First Nationwide's net assets.
Total debt was $116.3 billion at June 30, 1994, up $12.3 billion from
December 31, 1993. The increase resulted from higher debt levels required to
finance growth in earning assets at Ford Credit and The Associates, as well as
the consolidation of Hertz; the reclassification of First Nationwide's net
assets was a partial offset.
At June 30, 1994, Financial Services had approximately $27.8 billion of
support facilities available for use in the U.S. (including $4.8 billion of Ford
bank lines that may be used by Ford Credit at Ford's option), 98% of which were
contractually committed; less than 2% of these facilities were in use at that
date. An additional $17.5 billion of support facilities were available outside
the U.S., 47% of which were contractually committed; approximately $7.2 billion
of these support facilities were in use at June 30, 1994.
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
------------- ----------------------------------------
1994 1993 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Cars....................................... 9.1 8.5 8.5 8.2 8.2 9.3 9.8
Trucks..................................... 6.4 5.5 5.7 4.9 4.3 4.8 5.1
</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
------------- ----------------------------------------
1994 1993 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Cars*................................... 21.6% 22.3% 22.3% 21.8% 20.1% 21.1% 22.3%
Trucks.................................. 29.7 29.7 30.4 29.7 28.9 29.3 28.8
</TABLE>
- ------------
* Includes Jaguar sales since 1990.
For additional information regarding Ford, see the 1993 10-K Report, the
First Quarter 10-Q Report and the Second Quarter 10-Q Report.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the net proceeds
from the sale of the Debt Securities will be added to the general funds of Ford
Credit and will be available for the purchase of receivables, for loans and for
use in connection with the retirement of debt. Such proceeds initially may be
used to reduce short-term borrowings (commercial paper, borrowings
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<PAGE> 14
under bank lines of credit and borrowings under agreements with bank trust
departments) or may be invested temporarily in short-term securities.
Ford Credit expects to issue additional long-term and short-term debt from
time to time. The nature and amount of Ford Credit's long-term and short-term
debt and the proportionate amount of each can be expected to vary from time to
time, as a result of business requirements, market conditions and other factors.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of "earnings" to "fixed charges" for Ford Credit and Ford were as
follows for the first six months of 1994 and 1993 and each of the years
1989-1993:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30 YEARS ENDED DECEMBER 31
------------- ----------------------------------------
1994 1993 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ford Motor Credit Company................ 1.57 1.59 1.56 1.37 1.23 1.14 1.13
Ford Motor Company....................... 2.2 1.6 1.5 * ** 1.2 1.7
</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 Ford Credit ratio, "earnings" consist of income before
income taxes and cumulative effects of changes in accounting principles and
fixed charges. Income before income taxes and cumulative effects of changes in
accounting principles of Ford Credit excludes the equity in net income of all
unconsolidated affiliates and minority interest in net income of subsidiaries.
"Fixed charges" consist of interest on borrowed funds, amortization of debt
discount, premium, and issuance expense and one-third of all rental expense (the
proportion deemed representative of the interest factor).
For purposes of the Ford ratio, "earnings" include the profit/(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. "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).
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued in one or more series under an
Indenture dated as of August 1, 1994, as supplemented from time to time (the
"Indenture"), between Ford Credit and First Fidelity Bank, National Association
("First Fidelity"), Trustee. The term "Trustee", as used herein, shall mean
First Fidelity and, if at any time there is more than one Trustee acting under
the Indenture, the term "Trustee" as used herein with respect to Indenture
Securities (as defined below) of any particular series shall mean the Trustee
with respect to the Indenture Securities of such series. The following
statements with respect to the Debt Securities are subject to the detailed
provisions of the Indenture, the form of which is filed as an exhibit to the
Registration Statement. Parenthetical references below are to the Indenture or
the Form of Security contained therein and, whenever any particular provision of
the Indenture or any term used therein is referred to, such provision or term is
incorporated by reference as a part of the statement in connection with which
such reference is made, and the statement in connection with which such
reference is made is qualified in its entirety by such reference.
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<PAGE> 15
The particular terms of each series of Debt Securities, as well as any
modification or addition to the general terms of the Debt Securities as herein
described, which may be applicable to a particular series of Debt Securities,
are described in the Prospectus Supplement relating to such series of Debt
Securities and will be set forth in a filing with the Commission. Accordingly,
for a description of the terms of a particular series of Debt Securities,
reference must be made to the Prospectus Supplement relating to such series and
to the description of Debt Securities set forth in this Prospectus.
GENERAL
The Debt Securities offered hereby will be limited to $6,300,000,000
aggregate principal amount or the equivalent thereof in any currency, although
the Indenture provides that additional debt securities may be issued thereunder
up to the aggregate principal amount, which is not limited by the Indenture,
authorized from time to time by Ford Credit's Board of Directors. So long as a
single Trustee is acting for the benefit of the holders of all the Debt
Securities offered hereby and any such additional debt securities issued under
the Indenture, the Debt Securities and any such additional debt securities are
herein collectively referred to as the "Indenture Securities". The Indenture
also provides that there may be more than one Trustee under the Indenture, each
with respect to one or more different series of Indenture Securities. See also
"Trustee" herein. At any time when two or more Trustees are acting, each with
respect to only certain series, the term "Indenture Securities" as used herein
shall mean the one or more series with respect to which each respective Trustee
is acting and the powers and trust obligations of each such Trustee as described
herein shall extend only to the one or more series of Indenture Securities for
which it is acting as Trustee. The effect of the provisions contemplating that
there might be more than one Trustee acting for different series of Indenture
Securities is that, in that event, those Indenture Securities (whether of one or
more than one series) for which each Trustee is acting would be treated as if
issued under a separate indenture.
The Prospectus Supplement which accompanies this Prospectus sets forth a
description of the particular series of Debt Securities being offered thereby,
including: (1) the designation or title of such Debt Securities; (2) the
aggregate principal amount of such Debt Securities; (3) the percentage of their
principal amount at which such Debt Securities will be offered; (4) the date or
dates on which the principal of such Debt Securities will be payable; (5) the
rate or rates (which may be either fixed or variable) and/or the method of
determination of such rate or rates at which such Debt Securities shall bear
interest, if any; (6) the date or dates from which any such interest shall
accrue, or the method of determination of such date or dates, and the date or
dates on which any such interest shall be payable; (7) the terms for redemption,
extension or early repayment of such Debt Securities, if any; (8) the
denominations in which such Debt Securities are authorized to be issued; (9) the
currencies or currency units in which such Debt Securities are issued or
payable; (10) the provisions for a sinking fund, if any; (11) any additional
restrictive covenants included for the benefit of the holders of such Debt
Securities; (12) any additional Event of Default with respect to such Debt
Securities; (13) whether such Debt Securities are issuable as a Global Security;
and (14) any other term or provision relating to such Debt Securities which is
not inconsistent with the provisions of the Indenture.
One or more series of Debt Securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates. Federal income tax
consequences and special considerations applicable thereto will be described in
the Prospectus Supplement relating to any such series of Debt Securities.
The Debt Securities will be unsecured obligations of Ford Credit and will
rank prior to all subordinated indebtedness of Ford Motor Credit Company (parent
company only) and pari passu with all other unsecured and unsubordinated
indebtedness of Ford Motor Credit Company (parent company only).
14
<PAGE> 16
Except as otherwise provided in the Prospectus Supplement, principal,
premium, if any, and interest, if any, will be payable at an office or agency to
be maintained by Ford Credit in New York City, except that at the option of Ford
Credit interest may be paid by check mailed to the person entitled thereto.
(Form of Security and Sections 10.01 and 10.02).
Except as otherwise provided in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form without coupons and may
be presented for registration of transfer or exchange at the corporate trust
office of the Trustee. No service charge will be made for any transfer or
exchange of the Debt Securities, but Ford Credit may require payment of a sum to
cover any tax or other governmental charge payable in connection therewith.
(Section 3.05).
SUBSIDIARIES
The term "subsidiary of the Company" is defined in the Indenture as a
corporation a majority of the outstanding voting stock of which is owned,
directly or indirectly, by Ford Credit or by one or more subsidiaries of Ford
Credit, or by Ford Credit and one or more subsidiaries of Ford Credit. The term
"Restricted Subsidiary" is defined in the Indenture as a subsidiary of the
Company, incorporated in or conducting the major part of its business in the
United States, any of the activities of which includes insurance underwriting or
which had, at the end of its last quarterly accounting period preceding the date
of computation, assets with a value in excess of $1 million representing
accounts or notes receivable resulting from the financing of new cars, trucks,
tractors and farm and industrial equipment manufactured or sold by Ford or from
the financing of used cars, trucks, tractors and farm and industrial equipment
of the same types, whether manufactured by Ford or others. (Section 1.01). Ford
Holdings, which owns American Road and the other insurance businesses formerly
owned by Ford Credit, is not a subsidiary of the Company and therefore not a
Restricted Subsidiary, as such terms are defined in the Indenture. So long as
stock of Ford Holdings is directly owned by Ford Credit or by a Restricted
Subsidiary, such stock will be subject to the "Limitation on Liens" provision
described below. Ford Credit currently owns its stock in Ford Holdings directly
but is under no obligation to continue to do so.
LIMITATION ON LIENS
If Ford Credit or any Restricted Subsidiary shall pledge or otherwise
subject to any lien (such a pledge or lien is defined in the Indenture as a
"Mortgage") any of its property or assets, Ford Credit will secure or cause such
Restricted Subsidiary to secure the Indenture Securities equally and ratably
with (or prior to) the indebtedness secured by such Mortgage. This restriction
does not apply to Mortgages securing such indebtedness which shall not exceed $5
million in the aggregate at any one time outstanding and does not apply to (a)
certain Mortgages created or incurred to secure financing of the export or
marketing of goods outside the United States, (b) Mortgages on accounts
receivable payable in foreign currencies securing indebtedness incurred and
payable outside the United States, (c) Mortgages in favor of Ford Credit or any
Restricted Subsidiary, (d) Mortgages in favor of governmental bodies to secure
progress, advance or other payments, or deposits with any governmental body
required in connection with the business of Ford Credit or a Restricted
Subsidiary, (e) deposits made in connection with pending litigation, (f)
Mortgages existing at the time of acquisition of the assets secured thereby
(including acquisition through merger or consolidation) and certain purchase
money Mortgages, and (g) any extension, renewal or replacement of any Mortgage
or Mortgages referred to in the foregoing clauses (a) through (f), inclusive.
(Section 10.04).
MERGER AND CONSOLIDATION
The Indenture provides that no consolidation or merger of Ford Credit with
or into any other corporation shall be permitted, and no sale or conveyance of
its property as an entirety, or substantially as an entirety, may be made to
another corporation, if, as a result thereof, any asset of Ford Credit or a
Restricted Subsidiary would become subject to a Mortgage, unless the Indenture
15
<PAGE> 17
Securities shall be equally and ratably secured with (or prior to) the
indebtedness secured by such Mortgage, or unless such Mortgage could be created
pursuant to Section 10.04 (see "Limitation on Liens" above) without equally and
ratably securing the Indenture Securities. (Section 8.03).
EVENTS OF DEFAULT AND NOTICE THEREOF
Except as may otherwise be provided in an indenture supplemental to the
Indenture, the following events in respect of a particular series of Indenture
Securities are defined in the Indenture as "Events of Default": (a) failure to
pay interest for 30 days after becoming due; (b) failure to pay the principal or
premium, if any, for five business days after becoming due at maturity, on
redemption or otherwise; (c) failure to make a sinking fund payment for five
days after becoming due; (d) failure to perform any other covenants for 90 days
after notice; and (e) certain events of bankruptcy, insolvency or
reorganization. (Section 5.01).
If an Event of Default in respect of a particular series of Indenture
Securities outstanding occurs and is continuing, either the Trustee or the
holders of at least 25% in aggregate principal amount of the Indenture
Securities outstanding of such series may declare the principal amount (or, if
the Indenture 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 Indenture 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 Indenture
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 Indenture Securities outstanding
of such series 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 Indenture 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. (Section 5.02).
The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default in respect of a particular series of Indenture
Securities, give the holders of such series notice of all uncured defaults known
to it (the term "default" to include the events specified above without grace
periods); provided that, except in the case of default in the payment of the
principal of, or premium, if any, on, or interest on any of the Indenture
Securities of such series, the Trustee shall be protected in withholding such
notice if it in good faith determines that the withholding of such notice is in
the interests of the holders of such series. (Section 6.01).
Pursuant to the terms of the Indenture, Ford Credit is required to furnish
to the Trustee annually a statement of certain officers of Ford Credit stating
whether or not to the best of their knowledge Ford Credit is in default in
respect of any series of Indenture Securities in the performance and observance
of the terms of the Indenture and, if Ford Credit is in default, specifying such
default and the nature thereof.
The Indenture provides that the holders of a majority in aggregate
principal amount of all Indenture Securities of a particular series then
outstanding will have the right to waive certain defaults in respect of such
series and, subject to certain limitations, to direct the time, method and place
of conducting any proceedings for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. (Sections 5.12 and
5.13). No provision of the Indenture requires the Trustee to expend or risk its
own funds or otherwise incur any personal financial liability in the performance
of any of its duties thereunder, or in the exercise of any of its rights or
powers, if there are reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to the Trustee.
MODIFICATION OF THE INDENTURE
With certain exceptions, the Indenture, the rights and obligations of Ford
Credit and the rights of the holders of a particular series may be modified by
Ford Credit with the consent of the holders of
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<PAGE> 18
not less than 66 2/3% in aggregate principal amount of the Indenture Securities
of such series then outstanding; but no such modification may be made which
would (i) extend the fixed maturity of any Indenture Security of such series, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, without the consent of the holder of each Indenture
Security of such series so affected; or (ii) reduce the above-stated percentage
of Indenture Securities of such series, the consent of the holders of which is
required to modify or alter the Indenture, without the consent of the holders of
all Indenture Securities of such series then outstanding. (Section 9.02).
TRUSTEE
The Trustee may resign or be removed with respect to one or more series of
Indenture Securities and a successor Trustee may be appointed to act with
respect to such one or more series. (Section 6.08). In the event that there
shall be two or more persons acting as Trustee with respect to different series
of Indenture Securities, each such Trustee shall be a trustee of a trust or
trusts under the Indenture separate and apart from the trust or trusts
administered by any other such Trustee, and any action described herein to be
taken by the "Trustee" may then be taken by each such Trustee with respect to,
and only with respect to, the one or more series of Indenture Securities for
which it is acting as Trustee. (Section 6.09).
CONCERNING FIRST FIDELITY
First Fidelity Bank, National Association, Trustee under the Indenture, is
a depositary of Ford Credit, has a committed credit facility available to Ford
Credit and its subsidiaries and has performed other services for Ford Credit in
the normal course of its business.
REPORTS
Ford Credit publishes annual reports, containing certified financial
statements, and quarterly reports, containing interim unaudited financial
statements. Copies of such reports will be available upon request.
PLAN OF DISTRIBUTION
Ford Credit may sell the Debt Securities to or through underwriters, and
also may sell the Debt Securities directly to one or more other purchasers or
through agents.
The Prospectus Supplement sets forth the terms of the offering of the
particular series of Debt Securities to which such Prospectus Supplement
relates, including (i) the name or names of any underwriters or agents with whom
Ford Credit has entered into arrangements with respect to the sale of such
series of Debt Securities, (ii) the initial public offering or purchase price of
such series of Debt Securities, (iii) any underwriting discounts, commissions
and other items constituting underwriters' compensation from Ford Credit and any
other discounts, concessions or commissions allowed or reallowed or paid by any
underwriters to other dealers, (iv) any commissions paid to any agents, (v) the
net proceeds to Ford Credit, and (vi) the securities exchanges, if any, on which
such series of Debt Securities will be listed.
Unless otherwise set forth in the Prospectus Supplement relating to a
particular series of Debt Securities, the obligations of the underwriters to
purchase such series of Debt Securities will be subject to certain conditions
precedent and each of the underwriters with respect to such series of Debt
Securities will be obligated to purchase all of the Debt Securities of such
series allocated to it if
17
<PAGE> 19
any such Debt Securities are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
The Debt Securities may be offered and sold by Ford Credit directly or
through agents designated by Ford Credit from time to time. Unless otherwise
indicated in the Prospectus Supplement, any such agent or agents will be acting
on a best efforts basis for the period of its or their appointment. Any agent
participating in the distribution of the Debt Securities may be deemed to be an
"underwriter", as that term is defined in the Securities Act, of the Debt
Securities so offered and sold. The Debt Securities also may be sold to dealers
at the applicable price to the public set forth in the Prospectus Supplement
relating to a particular series of Debt Securities who later resell to
investors. Such dealers may be deemed to be "underwriters" within the meaning of
the Securities Act.
If so indicated in the Prospectus Supplement relating to a particular
series of Debt Securities, Ford Credit will authorize underwriters or agents to
solicit offers by certain institutions to purchase Debt Securities of such
series from Ford Credit pursuant to delayed delivery contracts providing for
payment and delivery at a future date. Such contracts will be subject only to
those conditions set forth in the Prospectus Supplement and the Prospectus
Supplement will set forth the commission payable for solicitation of such
contracts.
Underwriters and agents may be entitled, under agreements entered into with
Ford Credit, to indemnification by Ford Credit against certain civil
liabilities, including liabilities under the Securities Act.
LEGAL OPINIONS
The legality of the Debt Securities offered hereby will be passed on for
Ford Credit by J. D. Bringard, Esq., Vice President--General Counsel of Ford
Credit, or other counsel satisfactory to any underwriters or agents, and for any
underwriters or agents by Shearman & Sterling, 599 Lexington Avenue, New York,
N.Y. Mr. Bringard is a full-time employee of Ford Credit and owns and holds
options to purchase shares of Common Stock of Ford. Shearman & Sterling act as
counsel to the Compensation and Option Committee and the Audit Committee of the
Board of Directors of Ford and occasionally act as counsel to Ford and Ford
Credit in connection with certain transactions.
EXPERTS
The financial statements which are incorporated in this Prospectus by
reference to the 1993 10-K Report have been audited by Coopers & Lybrand, 400
Renaissance Center, Detroit, Michigan 48243, independent certified public
accountants, to the extent indicated in their report therein, and have been so
incorporated in reliance upon the report of that firm, which includes an
explanatory paragraph indicating Ford Credit changed its methods of accounting
for postretirement healthcare benefits and income taxes in 1992, and upon their
authority as experts in accounting and auditing.
With respect to the unaudited interim financial information of Ford Credit
for the periods ended March 31, 1994 and 1993 and June 30, 1994 and 1993,
included in the First Quarter 10-Q Report and the Second Quarter 10-Q Report,
respectively, incorporated by reference in this Prospectus, Coopers & Lybrand
have reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their reports
included in the First Quarter 10-Q Report and the Second Quarter 10-Q Report
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 each such report is not a
"report" or a "part" of the registration statement prepared or certified by the
accountants within the meaning of Sections 7 and 11 of such Act.
18
<PAGE> 20
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the offering described in this Registration Statement:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee....... $ 2,068,980
Printing and engraving.................................... 500,000
Accountants' fees......................................... 240,000
Blue Sky fees and expenses................................ 15,000
Fees and expenses of Trustee.............................. 200,000
Rating Agency fees........................................ 250,000
Miscellaneous expenses.................................... 145,000
-----------
Total.................................... $ 3,418,980
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware provides as follows:
145. Indemnification of officers, directors, employes and agents; insurance
- --
(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that he is or was a director,
officer, employe or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employe or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employe or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employe
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
II-1
<PAGE> 21
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employe or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2)
if such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employe or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employe or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employes or agents, so that any person who is or was a director,
officer, employe or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employe or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation
if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee, or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person
II-2
<PAGE> 22
who acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 5 of Article Ninth of the Certificate of Incorporation of Ford
Credit provides as follows:
LIMITATION ON LIABILITY OF DIRECTORS;
INDEMNIFICATION AND INSURANCE.
5.1. LIMITATION ON LIABILITY OF DIRECTORS. A director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability
(i) for any breach of the director's duty of loyalty to the
corporation 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 General Corporation Law or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this subsection 5.1 of Article NINTH to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
5.2. EFFECT OF ANY REPEAL OR MODIFICATION OF SUBSECTION 5.1. Any repeal or
modification of subsection 5.1 of this Article NINTH by the stockholders of the
corporation shall not adversely affect any right or protection of a director of
the corporation existing at the time of such repeal or modification.
5.3. INDEMNIFICATION AND INSURANCE.
5.3A. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or otherwise
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer or
employee of the corporation or is or was serving at the request of the
corporation as a director, officer or employee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including penalties, fines,
judgments, attorneys' fees, amounts paid or to be paid in settlement and excise
taxes imposed on fiduciaries with respect to (i) employee benefit plans, (ii)
charitable organizations or (iii) similar matters) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer or employee and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that the corporation shall indemnify any such person seeking
indemnification in
II-3
<PAGE> 23
connection with a proceeding (or part thereof) initiated by such person (other
than pursuant to subsection 5.3b of this Article NINTH) only if such proceeding
(or part thereof) was authorized by the Board of Directors of the corporation.
The right to indemnification conferred in this subsection 5.3a of Article NINTH
shall be a contract right and shall include the right to be paid by the
corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding shall be made only upon
delivery to the corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this subsection 5.3a of Article NINTH or otherwise.
5.3B. RIGHT OF CLAIMANT TO BRING SUIT. If a claim which the corporation is
obligated to pay under subsection 5.3a of this Article NINTH is not paid in full
by the corporation within 60 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
5.3C. MISCELLANEOUS. The provisions of this Section 5.3 of Article NINTH
shall cover claims, actions, suits and proceedings, civil or criminal, whether
now pending or hereafter commenced, and shall be retroactive to cover acts or
omissions or alleged acts or omissions which heretofore have taken place. If any
part of this Section 5.3 of Article NINTH should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not be affected.
5.3D. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 5.3 of Article NINTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
5.3E. INSURANCE. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
5.3F. INDEMNIFICATION OF AGENTS OF THE CORPORATION. The corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and rights to be paid by the corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any
agent of the corporation to the fullest extent of the provisions of this Section
5.3
II-4
<PAGE> 24
of Article NINTH with respect to the indemnification and advancement of expenses
of directors, officers and employees of the corporation.
Similar indemnification provisions in Section 5 of Article NINTH of the
Certificate of Incorporation of Ford are applicable to directors, officers and
employees of Ford Credit who serve as such at the request of Ford.
Paragraph XXVI (formerly Paragraph XXIV) of Ford's Savings and Stock
Investment Plan provides as follows with respect to the members of the Savings
and Stock Investment Plan Committee:
No member of the Committee or alternate for a member or director,
officer or employe of any Participating Company shall be liable for any
action or failure to act under or in connection with the Plan, except for
his own bad faith; provided, however, that nothing herein shall be deemed
to relieve any such person from responsibility or liability for any
obligation or duty under ERISA. Each director, officer, or employe of the
Company who is or shall have been designated to act on behalf of the
Company and each person who is or shall have been a member of the Committee
or an alternate for a member or a director, officer or employe of any
Participating Company, as such, shall be indemnified and held harmless by
the Company against and from any and all loss, cost, liability or expense
that may be imposed upon or reasonably incurred by him in connection with
or resulting from any claim, action, suit or proceeding to which he may be
a party or in which he may be involved by reason of any action taken or
failure to act under the Plan and against and from any and all amounts paid
by him in settlement thereof (with the Company's written approval) or paid
by him in satisfaction of a judgment in any such action, suit or
proceeding, except a judgment in favor of the Company based upon a finding
of his bad faith; subject, however, to the condition that, upon the
assertion or institution of any such claim, action, suit or proceeding
against him, he shall in writing give the Company an opportunity, at its
own expense, to handle and defend the same before he undertakes to handle
and defend it on his own behalf. The foregoing right of indemnification
shall not be exclusive of any other right to which such person may be
entitled as a matter of law or otherwise, or any power that a Participating
Company may have to indemnify him or hold him harmless.
Pursuant to the Underwriting Agreements relating to its underwritten
offerings of securities, the underwriters have agreed to indemnify Ford Credit,
each officer and director of Ford Credit and each person, if any, who controls
Ford Credit within the meaning of the Securities Act of 1933, against certain
liabilities, including liabilities under said Act. The Sales Agency Agreements
and the Purchase Agreements filed as Exhibits to, or incorporated by reference
in, Ford Credit's Registration Statements relating to its offerings of
medium-term notes, floating rate notes, capital notes, variable rate notes,
original issue discount notes and notes provide for similar indemnification by
the Agents named therein.
Ford Credit is insured for liabilities it may incur pursuant to Article
NINTH of its Certificate of Incorporation relating to the indemnification of its
directors, officers and employes. In addition, directors, officers and certain
key employes are insured against certain losses which may arise out of their
employment and which are not recoverable under the indemnification provisions of
Ford Credit's Certificate of Incorporation. The premium for both insurance
coverages is paid by Ford.
Pursuant to Paragraph X of the Ford Money Market Account Program (the
"Program") each member and alternate or a member of the Program Committee and
each officer and director of each Participating Company is indemnified against
all loss, cost, liability or expense reasonably incurred in connection with or
resulting from any claim, action, suit or proceeding in which such person is
involved or may be involved by reason of any action or failure to act under the
Program.
Pursuant to Paragraph VIII of the Ford Money Market Account Plan (the
"Plan") each member and alternate member of the Plan Committee and each officer,
director and employe of Ford Credit
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<PAGE> 25
is indemnified against all loss, cost, liability or expense reasonably incurred
in connection with or resulting from any claim, action, suit or proceeding in
which such person is involved or may be involved by reason of any action or
failure to act under the Plan.
ITEM 16. EXHIBITS.
Exhibit 1 -- Form of Underwriting Agreement relating to the Debt
Securities.
Exhibit 4-A -- Indenture dated as of August 1, 1994 between Ford Credit and
First Fidelity Bank, National Association, Trustee, relating to the Debt
Securities.
Exhibit 4-B -- Form of Debt Security is included in Exhibit 4-A. Any
additional form or forms of Debt Security will be filed with the
Commission.
Exhibit 5 -- Opinion of H.D. Smith, Secretary and Corporate Counsel of Ford
Credit, as to the legality of the Debt Securities registered hereunder.
Exhibit 12-A -- Calculation of Ratio of Earnings to Fixed Charges of Ford
Credit.
Exhibit 12-B -- Calculation of Ratio of Earnings to Fixed Charges of Ford.
Exhibit 15 -- Letter from Coopers & Lybrand L.L.P. regarding unaudited
interim financial information.
Exhibit 23-A -- Consent of Coopers & Lybrand L.L.P.
Exhibit 23-B -- Consent of H.D. Smith is contained in his opinion filed as
Exhibit 5 to this Registration Statement.
Exhibit 24 -- Powers of Attorney.
Exhibit 25 -- Statement of Eligibility and Qualification on Form T-1 of
First Fidelity Bank, National Association, Trustee.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs 1(i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
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<PAGE> 26
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of Ford
Credit pursuant to the provisions described under Item 15 above, or otherwise,
Ford Credit has 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 Ford Credit or Ford of
expenses incurred or paid by a director, officer or controlling person of Ford
Credit 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, Ford Credit, or Ford, as the case may be, will,
unless in the opinion of its 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.
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<PAGE> 27
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3, THAT THE SECURITY RATING REQUIREMENT OF
TRANSACTION REQUIREMENT B.2. OF FORM S-3 WILL BE MET BY THE TIME OF THE
EFFECTIVENESS OF THIS REGISTRATION STATEMENT, AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF DEARBORN, STATE OF MICHIGAN, ON THE 26TH DAY OF
AUGUST, 1994.
FORD MOTOR CREDIT COMPANY
By WILLIAM E. ODOM*
----------------------------
(WILLIAM E. ODOM, CHAIRMAN OF
THE BOARD OF DIRECTORS)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Chairman of the Board of
Directors and
Director (principal
WILLIAM E. ODOM* executive officer)
....................................
(WILLIAM E. ODOM)
Director and Executive Vice
President--Finance (principal
KENNETH J. COATES* financial officer)
....................................
(KENNETH J. COATES)
Controller (principal
TERRENCE F. MARRS* accounting officer)
....................................
(TERRENCE F. MARRS)
MICHAEL I. AULD* Director
....................................
(MICHAEL I. AULD) August 26, 1994
JOHN G. CLISSOLD* Director
....................................
(JOHN G. CLISSOLD)
EDSEL B. FORD II* Director
....................................
(EDSEL B. FORD II)
DAVID N. MCCAMMON* Director
....................................
(DAVID N. MCCAMMON)
ROBERT D. WARNER* Director
....................................
(ROBERT D. WARNER)
KENNETH WHIPPLE* Director
....................................
(KENNETH WHIPPLE)
* By /s/ RICHARD P. CONRAD
-------------------------------
(RICHARD P. CONRAD,
ATTORNEY-IN-FACT)
</TABLE>
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<PAGE> 28
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Exhibit 1 -- Form of Underwriting Agreement relating to the Debt Securities.
Exhibit 4-A -- Indenture dated as of August 1, 1994 between Ford Credit and First
Fidelity Bank, National Association, Trustee, relating to the Debt Securities.
Exhibit 4-B -- Form of Debt Security is included in Exhibit 4-A. Any additional form
or forms of Debt Security will be filed with the Commission.
Exhibit 5 -- Opinion of H.D. Smith, Secretary and Corporate Counsel of Ford Credit, as
to the legality of the Debt Securities registered hereunder.
Exhibit 12-A -- Calculation of Ratio of Earnings to Fixed Charges of Ford Credit.
Exhibit 12-B -- Calculation of Ratio of Earnings to Fixed Charges of Ford.
Exhibit 15 -- Letter from Coopers & Lybrand L.L.P. regarding unaudited interim
financial information.
Exhibit 23-A -- Consent of Coopers & Lybrand L.L.P.
Exhibit 23-B -- Consent of H.D. Smith is contained in his opinion filed as Exhibit 5
to this Registration Statement.
Exhibit 24 -- Powers of Attorney.
Exhibit 25 -- Statement of Eligibility and Qualification on Form T-1 of First Fidelity
Bank, National Association, Trustee.
</TABLE>
<PAGE> 1
EXHIBIT 1
FORD MOTOR CREDIT COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
, 199
To [Name and address of Representative[s]]
Ladies and Gentlemen:
Ford Motor Credit Company, a Delaware corporation (the
"Company"), proposes from time to time to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to the
firm or firms named in Schedule I to the applicable Pricing Agreement (such
firm or firms constituting the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) certain of its debt securities
(the "Securities") specified in Schedule II to such Pricing Agreement (such
Securities, as so specified in such Pricing Agreement, being herein sometimes
referred to as the "Designated Securities"), less the principal amount of
Designated Securities covered by Delayed Delivery Contracts, if any, as
provided in Section 3 hereof and as may be specified in Schedule II to such
Pricing Agreement (such Designated Securities to be covered by Delayed Delivery
Contracts, as so specified in such Pricing Agreement, being herein sometimes
referred to as "Contract Securities" and the Designated Securities to be
purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) being herein sometimes referred to as "Underwriters'
Securities").
The terms and rights of any particular issuance of
Designated Securities shall be as specified in the Pricing Agreement relating
thereto and in or pursuant to the indenture dated as of August 1, 1994 (such
indenture, together with any indentures supplemental thereto, being herein
referred to as the "Indenture") between the Company and First Fidelity Bank,
National Association, Trustee (the "Trustee").
1. Particular sales of Designated Securities may be made
from time to time to the Underwriters of such Securities, for whom [Name of
Representative[s]] will act as
<PAGE> 2
2
representative[s] (the "Representative[s]"). This Underwriting Agreement shall
not be construed as an obligation of the Company to sell any of the Securities
or as an obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall
be evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall state the aggregate principal
amount of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the principal amount of such Designated Securities to be purchased
by each Underwriter, whether any of such Designated Securities shall be covered
by Delayed Delivery Contracts (as defined in Section 3 hereof) and the
commission payable to the Underwriters with respect thereto, and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the registration statement and the prospectus with respect thereto
and the Indenture) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of facsimile transmissions.
Each Pricing Agreement shall be deemed to be an agreement by the Company and
the Underwriters to be bound by the terms of this Agreement. The obligations
of the Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement (No. 33-50295) on Form S-3
("Registration Statement No. 33-50295") and a registration statement
(No. 33- ) on Form S-3 ("Registration Statement No. 33- ") in
respect of the Securities have been filed with the Securities and
Exchange Commission (the "Commission"), each in the form heretofore
delivered to the Representative[s], and each registration statement in
such form has been declared effective by the Commission; and no stop
order suspending the effectiveness of either registration statement
has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included
in Registration Statement No. 33- being hereinafter called the
"Preliminary Prospectus", the various parts of Registration Statement
No. 33-50295, including all exhibits thereto but excluding Form T-1,
each as amended at the time such part became effective, and the
various parts of Registration Statement No. 33- , including all
exhibits thereto but excluding Form T-1, each as amended at the time
such part became effective, each being hereinafter referred to as a
"Registration Statement", and the prospectus relating to the
Securities, in the form in which it has most recently been filed, or
mailed for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference
herein to either Registration Statement, the Preliminary Prospectus or
the Prospectus shall be deemed to include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), as of the effective
date of such
<PAGE> 3
3
Registration Statement or the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to either Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to include any documents
filed after the effective date of such Registration Statement or the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and so incorporated by reference; and any reference to the
phrase "Prospectus as amended or supplemented" shall be deemed to
refer to the Prospectus as amended or supplemented to describe the
offering of a particular series of Designated Securities in the form
in which it is first filed, or mailed for filing, with the Commission
pursuant to Rule 424 under the Act, including any documents
incorporated by reference therein as of the date of such filing or
mailing; provided, however, that subsequent to the issue and sale,
pursuant to this Agreement and a related Pricing Agreement, of
Securities in the aggregate principal amount of $200,000,000 (which
Securities were registered under the Registration Statement No. 33-
50295), the term "Registration Statement" shall, for all purposes
herein except Section 7 hereof, refer to Registration Statement No.
33- );
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and any further
documents so filed and incorporated by reference, when they are filed
with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder;
(c) Each Registration Statement and the Prospectus conform,
and any amendments or supplements thereto will conform, in all
material respects to the requirements of the Act, the Exchange Act,
where applicable, and the rules and regulations of the Commission
under the Act or the Exchange Act, as applicable, and do not and will
not, as of the applicable effective date as to each Registration
Statement and any amendment thereto and as of the applicable filing
date as to the Prospectus and any supplement thereto, contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statement or omission made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representative[s] expressly for use in the Prospectus as amended or
supplemented relating to such Securities; when each Registration
Statement became effective the Indenture was, and at all times
thereafter the Indenture has been and will be, duly qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and when each Registration Statement became effective the
Indenture conformed, and at all times thereafter the Indenture has
conformed and will conform, in all material respects to the
requirements of the Trust Indenture Act;
<PAGE> 4
4
(d) The Company and Ford Holdings, Inc. ("Holdings") have
each been duly incorporated, and each is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation; and each 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;
(e) This Agreement has been duly authorized, executed and
delivered on behalf of the Company; upon execution and delivery of
each Pricing Agreement by the Company, such Pricing Agreement shall
have been duly authorized, executed and delivered on behalf of the
Company and, when executed and delivered by the Representative[s],
will be a valid and legally binding agreement of the Company in
accordance with its terms; on the date of each Pricing Agreement with
respect to the Designated Securities covered thereby, such Designated
Securities shall be duly authorized, and, when such Designated
Securities are authenticated as contemplated by the Indenture and
issued and delivered in accordance with this Agreement and the Pricing
Agreement applicable to such Designated Securities and, in the case of
any Contract Securities, pursuant to Delayed Delivery Contracts
applicable to such Contract Securities, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company in accordance with their
terms and will be entitled to the benefits provided by the Indenture,
which will be substantially in the form included as an exhibit to each
Registration Statement; and the Indenture has been duly authorized by
the Company, and, as executed and delivered by the Company and the
Trustee, constitutes a valid and legally binding instrument of the
Company in accordance with its terms except as the same may be limited
by bankruptcy, insolvency, reorganization 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;
(f) In the event that any of the Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Company and, when executed
and delivered on behalf of the Company and duly authorized, executed
and delivered on behalf of the purchaser thereunder, will constitute a
valid and legally binding agreement of the Company in accordance with
its terms;
(g) There is no consent, approval, authorization, order,
registration or qualification of or with any court or any regulatory
authority or other governmental body having jurisdiction over the
Company which is required for, and the absence of which would
materially affect, the issue and sale of any Designated Securities as
contemplated by this Agreement or, in the case of any Contract
Securities, Delayed Delivery Contracts with respect to such Contract
Securities, or the execution, delivery or performance of the
Indenture, except the registration under the Act of the Securities,
the qualification of the Indenture under the Trust Indenture Act and
such consents, approvals, authorizations,
<PAGE> 5
5
registrations or qualifications as may be required under the
securities or Blue Sky laws of any jurisdiction in connection with the
public offering of the Securities by the Underwriters; and
(h) Coopers & Lybrand, who have certified certain of the
financial statements of the Company and its subsidiaries included or
incorporated by reference in each Registration Statement and the
Prospectus, are, to the best knowledge of the Company, independent
certified public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable
to any Designated Securities and authorization by the Representative[s] of the
release of the Underwriters' Securities, the several Underwriters propose to
offer the Underwriters' Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented, and, in connection with
such offer or the sale of such Designated Securities, will use the Prospectus
as amended or supplemented, together with any amendment or supplement thereto,
that specifically describes such Designated Securities, in the form which has
been most recently distributed to them by the Company, only as permitted or
contemplated thereby, and will offer and sell such Designated Securities only
as permitted by the Act and the applicable securities laws or regulations of
any jurisdiction. The Representative[s] will use [its] [their] best efforts to
inform the Company when [it has] [they have] authorized the sale of the
Underwriters' Securities to the public and when [it has] [they have] been
advised that such Underwriters' Securities have been sold by the several
Underwriters within a reasonable period of time after such sales are completed.
The Company may specify in Schedule II to the Pricing
Agreement applicable to any Designated Securities that the Underwriters are
authorized to solicit offers to purchase Designated Securities from the Company
pursuant to delayed delivery contracts (herein called "Delayed Delivery
Contracts"), substantially in the form of Annex II attached hereto but with
such changes therein as the Representative[s] and the Company may authorize or
approve. If so specified, the Underwriters will endeavor to make such
arrangements, and as compensation therefor the Company will pay to the
Representative[s], for the accounts of the Underwriters, at the Time of
Delivery (as defined in Section 4 hereof), such commission, if any, as may be
set forth in such Pricing Agreement. Delayed Delivery Contracts, if any, shall
be with institutional investors of the types described in the Prospectus as
amended or supplemented and subject to other conditions therein set forth. The
Company will enter into a Delayed Delivery Contract in each case where the
Underwriters have arranged for such a contract and the Company has advised the
Representative[s] of its approval of the proposed sale of Contract Securities
to the purchaser thereunder; provided, however, that the minimum principal
amount of Contract Securities covered by any Delayed Delivery Contract (or the
aggregate amount under Delayed Delivery Contracts with related purchasers)
shall be $1,000,000 and the aggregate principal amount of all Contract
Securities shall not exceed the maximum aggregate principal amount specified in
Schedule II to the Pricing Agreement with respect to the Designated Securities
specified therein, unless the Company shall otherwise agree in writing.
However, if
<PAGE> 6
6
the aggregate principal amount of Contract Securities requested for delayed
delivery is less than the minimum aggregate principal amount specified in such
Schedule II, the Company will have the right to reject all requests. Each
Underwriter to whom Contract Securities have been attributed will make
reasonable efforts to assist the Company in obtaining performance by the
purchaser in accordance with the terms of the Delayed Delivery Contract
covering such Contract Securities, but no Underwriter will have any liability
in respect of the validity or performance of any Delayed Delivery Contract.
The Company will notify the Representative[s] not later than
3:30 p.m., New York City time, on the third business day preceding the Time of
Delivery specified in the applicable Pricing Agreement (or such other time and
date as the Representative[s] and the Company may agree upon in writing), such
notice to be confirmed in writing prior to such Time of Delivery, of the
principal amount of Contract Securities, and the name of, and principal amount
thereof to be purchased by, each purchaser. The principal amount of Contract
Securities to be deducted from the principal amount of Designated Securities to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Securities shall be, in each case, the
principal amount of Contract Securities of which the Company has been advised
in writing prior to the time of Delivery by the Representative[s] as having
been attributed to such Underwriter, provided that, if the Company has not been
so advised, the amount of Contract Securities to be so deducted shall be, in
each case, that proportion of Contract Securities which the principal amount of
Designated Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the total principal amount of the Designated Securities
(rounded, as the Representative[s] may determine, to the nearest $1,000
principal amount) and that, subject to Section 8 hereof, the total principal
amount of Underwriters' Securities to be purchased by all of the Underwriters
pursuant to such Pricing Agreement shall be the total principal amount of
Designated Securities set forth in Schedule I to such Pricing Agreement less
the principal amount of the Contract Securities.
4. Underwriters' Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto shall be
delivered (to the extent practicable) in definitive form or in the form of one
or more global securities, as specified in such Pricing Agreement, by the
Company to the Representative[s], for the account of such Underwriter, against
payment of the purchase price therefor by such Underwriter or on its behalf, by
certified or bank cashier's check or checks, payable to the order of the
Company, or by wire or internal bank transfer to an account specified by the
Company, in the funds specified in such Pricing Agreement, all at the place and
time and date specified in such Pricing Agreement or at such other place and
time and date as the Representative[s] and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities. If any Underwriters' Securities are to be delivered in definitive
form, the Underwriters' Securities so delivered shall be in such authorized
denominations and shall be registered in such name or names as the
Representative[s] shall request in writing at least 48 hours prior to the Time
of Delivery. For the purpose of expediting the checking of such Securities by
the Representative[s], the Company agrees to make such Securities available to
the Representative[s] not later than 9:00 a.m., New York City time, on the
business day next preceding the Time of Delivery at the office of the
<PAGE> 7
7
Representative[s] designated in Section 11 hereof. If any Underwriters'
Securities are to be delivered in global form, unless otherwise provided in the
applicable Pricing Agreement, the Underwriters' Securities as delivered shall
be deposited with, or on behalf of, the Depository Trust Company (the
"Depository") and registered in the name of the Depository's nomineee.
Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the Representative[s] for
the accounts of the Underwriters a check payable to the order of the
Representative[s] in the amount of any compensation payable by the Company to
the Underwriters in respect of any Delayed Delivery Contracts as provided in
Section 3 hereof and in the Pricing Agreement relating to such Securities, or
such amount may be deducted from the amounts delivered pursuant to the
preceding paragraph.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To make no amendment or any supplement to either
Registration Statement or the Prospectus as amended or supplemented
after the date of the Pricing Agreement relating to such Designated
Securities and prior to the Time of Delivery for such Designated
Securities prior to having furnished the Representative[s] with a copy
of the proposed form thereof and given the Representative[s] a
reasonable opportunity to review the same; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus as amended or supplemented and for so long as the delivery
of a prospectus is required by law in connection with the offering or
sale of such Designated Securities, and during such same period to
advise the Representative[s], promptly after it receives notice
thereof, of the time when any amendment to either Registration
Statement has been filed or become effective or any supplement to the
Prospectus as amended or supplemented or any amended Prospectus has
been filed or mailed for filing, of the issuance of any stop order by
the Commission, of the suspension of the qualification of such
Designated Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of
either Registration Statement or the Prospectus as amended or
supplemented or for additional information; and, in the event of the
issuance of any such stop order or of any order preventing or
suspending the use of any prospectus relating to such Designated
Securities or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representative[s] may reasonably request in order to qualify such
Designated Securities for offering and sale under the securities laws
of such states as the Representative[s] may request and to continue
such qualifications in effect so long as necessary under such laws for
the distribution of such Designated Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation to do business, or to
<PAGE> 8
8
file a general consent to service of process in any jurisdiction, and
provided further that the expense of maintaining any such
qualification more than one year from the date of the Pricing
Agreement with respect to such Designated Securities shall be at the
expense of the Underwriters;
(c) To furnish the Underwriters with copies of each
Registration Statement (excluding exhibits) and copies of the
Prospectus as amended or supplemented in such quantities as the
Representative[s] may from time to time reasonably request; and if,
before a period of six months shall have elapsed after the date of the
Pricing Agreement applicable to such Designated Securities and the
delivery of a prospectus shall be at the time required by law in
connection with sales of any such Designated Securities, either (i)
any event shall have occurred as a result of which the Prospectus as
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (ii) for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus as amended or supplemented or to file under the Exchange
Act any document incorporated by reference into the Prospectus as
amended or supplemented in order to comply with the Act or the
Exchange Act, to notify the Representative[s] and upon [its] [their]
request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer participating in the
distribution of such Designated Securities as many copies as the
Representative[s] may from time to time reasonably request of an
amendment or a supplement to the Prospectus as amended or supplemented
which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required by law to deliver
a prospectus in connection with sales of any of such Designated
Securities at any time six months or more after the date of such
Pricing Agreement, upon the request of the Representative[s], but at
the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as the Representative[s] may request of an
amended or supplemented prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to its security holders as
soon as practicable, but in any event no later than eighteen months
after the effective date of each Registration Statement (as such date
is defined in Rule 158(c) under the Act), an earning statement of the
Company and its consolidated subsidiaries complying with Rule 158
under the Act and covering a period of at least twelve consecutive
months beginning after such effective date;
(e) During a period of five years from the date of the
Pricing Agreement applicable to such Designated Securities, to furnish
to the Representative[s] copies of all reports or other communications
(financial or other) furnished to security holders, and to deliver to
the Representative[s], during such same period, (i) as soon as they
are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any of the Securities or any
<PAGE> 9
9
class of securities of the Company is listed, and (ii) such additional
information concerning the business and financial condition of the
Company as the Representative[s] may from time to time reasonably
request (such financial statements to be on a consolidated basis to
the extent that the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its security holders generally or
to the Commission); and
(f) To pay or cause to be paid all costs and expenses
incident to the performance of its obligations hereunder, including
the cost of all qualifications of such Designated Securities under
state securities laws (including reasonable fees and disbursements of
counsel to the Underwriters in connection with such qualifications and
with legal investment surveys), any fees of rating agencies with
respect to the Securities and the cost of printing this Agreement,
each Pricing Agreement and any Delayed Delivery Contracts (it being
understood that, except as provided in this subsection (f) and in
Section 10 hereof, the Underwriters will pay all of their own costs
and expenses, including the cost of printing any Agreement among
Underwriters, the fees of their counsel, transfer taxes on resale of
any of such Designated Securities by them and any advertising expenses
connected with any offers that they may make).
6. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement applicable to such Designated Securities
shall be subject, in the discretion of the Representative[s], to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery for such Designated Securities,
true and correct, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, in all material
respects, and the following additional conditions:
(a) No stop order suspending the effectiveness of either
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with or otherwise satisfied;
(b) J.M. Rintamaki, Esq., an Assistant General Counsel and
Secretary of Ford Motor Company ("Ford"), and J.D. Bringard, Esq.,
Vice President - General Counsel of the Company, or other counsel
satisfactory to the Representative[s] in [its] [their] reasonable
judgment, shall have furnished to the Representative[s] their written
opinion, dated the Time of Delivery for such Designated Securities, in
form satisfactory to the Representative[s] in [its] [their] reasonable
judgment, 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 conduct its
business as described in the Prospectus as amended or
supplemented, and is
<PAGE> 10
10
duly qualified and in good standing to do business as a
foreign corporation in the State of Michigan;
(ii) The Company has an authorized capital stock as set
forth in the Prospectus as amended or supplemented, and all
the outstanding shares of its capital stock have been duly
and validly authorized and issued and are owned of record
and beneficially by Ford, and have not been pledged or
otherwise encumbered by Ford;
(iii) Holdings 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 the State of Delaware to own its properties and conduct
its business as presently conducted;
(iv) This Agreement and the Pricing Agreement
applicable to the Designated Securities each have been duly
authorized, executed and delivered by the Company;
(v) The Indenture has been duly authorized, executed
and delivered by, and constitutes a valid and binding
instrument of, the Company and has been duly qualified under
the Trust Indenture Act;
(vi) In the event that any of the Designated Securities
are to be purchased pursuant to Delayed Delivery Contracts,
each Delayed Delivery Contract, which has been executed by
the Company, has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery by the purchaser thereunder, is a
valid and binding agreement of the Company;
(vii) The Designated Securities have been duly
authorized; the Underwriters' Securities, assuming due
authentication by the Trustee, have been duly executed,
authenticated, issued and delivered and constitute valid and
binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Contract Securities, if
any, when duly executed and authenticated as provided in the
Indenture and issued and delivered in accordance with the
Delayed Delivery Contracts, if any, will constitute valid
and binding obligations of the Company entitled to the
benefits provided by the Indenture;
(viii) The issue and sale of the Designated Securities
and the compliance by the Company with all provisions of the
Designated Securities, the Indenture, this Agreement, the
Pricing Agreement applicable to the Designated Securities
and each of the Delayed Delivery Contracts, if any, 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 considered as a
whole),
<PAGE> 11
11
or result in the creation or imposition of any lien, charge
or encumbrance (in each case material to the Company and its
subsidiaries considered as a whole) upon any of the property
or assets of the Company or Holdings pursuant to the terms
of, any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or other similar
agreement or instrument known to such counsel under which
the Company or Holdings is a debtor or a guarantor, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company;
(ix) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and other accounting information
contained or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no
opinion), when they were filed with the Commission, complied
as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the
Commission thereunder;
(x) Each Registration Statement has become effective
under the Act and, to the best knowledge of such counsel, no
stop order suspending the effectiveness of either
Registration Statement has been issued and no proceeding for
that purpose has been instituted or threatened by the
Commission; each Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than Exhibits
12-A and 12-B to each Registration Statement and the
financial statements and other accounting information
contained in each Registration Statement or the Prospectus
as amended or supplemented or any further amendments or
supplements thereto, or omitted therefrom, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the
rules and regulations thereunder; and the statements in the
Prospectus as amended or supplemented in the sections
thereof describing the Securities and the Designated
Securities are accurate and fairly present the information
required or purported to be shown;
(xi) The Amended and Restated Profit Maintenance
Agreement dated as of July 1, 1993 between Ford and the
Company (filed as an exhibit to the Company's Annual Report
on Form 10-K incorporated by reference in the Prospectus as
amended or supplemented) has been duly authorized, executed
and delivered by the parties thereto and is a valid and
binding agreement of such parties;
(xii) Such counsel believe that each Registration
Statement (other than Exhibits 12-A and 12-B thereto and the
financial statements and other accounting information
contained therein or omitted therefrom, as to which such
counsel need express no opinion) and any amendment thereto,
at the time the same
<PAGE> 12
12
became effective, did not contain 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;
(xiii) Such counsel believe that at the Time of Delivery
the Prospectus as amended or supplemented (other than the
financial statements and other accounting information
contained therein or omitted therefrom, as to which such
counsel need express no opinion) together with any
supplement thereto does not contain any untrue statement of
a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(xiv) Such counsel do not know of any contract or other
document of a character required to be filed as an exhibit
to either Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in either
Registration Statement or the Prospectus as amended or
supplemented which is not filed or incorporated by reference
or described as required; and
(xv) Such counsel do not know of any legal or
governmental proceeding pending to which the Company or
Holdings is a party or of which any property of the Company
or Holdings is the subject, and no such proceedings are
known by such counsel to be threatened or contemplated by
governmental authorities or threatened by others, other than
as set forth or contemplated in the Prospectus as amended or
supplemented and other than such proceedings which, in their
opinion, will not have a material adverse effect upon the
general affairs, financial position, net worth or results of
operations (on an annual basis) of the Company and its
subsidiaries considered as a whole.
Such opinion may be made subject to the qualification that the
enforceability of the terms of the Indenture, the Delayed Delivery
Contracts, if any, the Designated Securities and that certain
agreement referred to in paragraph (xi) of this subsection (b) may be
limited by bankruptcy, insolvency, reorganization 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.
(c) Shearman & Sterling, counsel to the Underwriters, shall
have furnished to the Representative[s] their written opinion, dated
the Time of Delivery for such Designated Securities, in form
satisfactory to the Representative[s] in [its] [their] reasonable
judgment, to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the
State of Delaware and has the corporate
<PAGE> 13
13
power under the laws of such State to own its properties and
carry on its business as set forth in the Prospectus as
amended or supplemented;
(ii) The Indenture has been duly qualified under the
Trust Indenture Act, has been duly authorized, validly
executed and delivered by the Company and constitutes a
valid and binding obligation of the Company;
(iii) The Designated Securities have been duly
authorized by the Company; the Underwriters' Securities,
when executed by the Company and authenticated by the
Trustee in accordance with the Indenture and delivered and
paid for as provided in this Agreement and the applicable
Pricing Agreement, will have been duly issued under the
Indenture and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the
Indenture; and any Contract Securities (if executed by the
Company and authenticated by the Trustee as aforesaid), when
delivered and paid for as provided in the Delayed Delivery
Contracts, will have been duly issued under the Indenture
and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture;
(iv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and other accounting information
contained or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no
opinion), when they were filed with the Commission, appeared
on their face to be appropriately responsive in all material
respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
(v) Each Registration Statement has become effective
under the Act, is still effective, and to the best knowledge
of such counsel no proceedings for a stop order are pending
or threatened;
(vi) Each Registration Statement and the Prospectus as
amended or supplemented and any further amendments or
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than Exhibits
12- A and 12-B to each Registration Statement and the
financial statements and other accounting information
contained in each Registration Statement or the Prospectus
as amended or supplemented or any further amendments or
supplements thereto, or omitted therefrom, as to which such
counsel need express no opinion) appear on their face to be
appropriately responsive in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder;
(vii) The Indenture and the Designated Securities
conform as to legal matters with the descriptions thereof
contained in each Registration Statement and the Prospectus
as amended or supplemented; and
<PAGE> 14
14
(viii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company.
Such opinion shall also state that, while the such counsel have not
verified, and are not passing upon and do not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
they have generally reviewed and discussed such statements with the
certain officers and employees of the Company and Ford, with their
counsel and auditors and with the representatives of the Underwriters,
and in the course of such review and discussions, no facts came to the
attention of such counsel which lead them to believe that either the
Registration Statement, at the time that such Registration Statement
[originally] became effective [and at the time at which the Company
filed its Annual Report on Form 10-K] (other than the financial
statements and other accounting information contained therein, or
omitted therefrom, as to which they have not been requested to
comment), contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, as
of the date thereof (other than the financial statements and other
accounting information contained therein, or omitted therefrom, as to
which they have not been requested to comment), included an untrue
statement of a material fact or omitted 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.
Such opinion may be made subject to the
qualification that the enforceability of the terms of the Indenture
and the Designated Securities may be limited by bankruptcy,
insolvency, reorganization 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.
(d) (i) At the time of execution of this Agreement, Coopers
& Lybrand shall have furnished to [Name of Representative[s]] a letter
dated the effective date of each Registration Statement, (ii) at the
time of execution of the Pricing Agreement for such Designated
Securities, Coopers & Lybrand shall have furnished to the
Representative[s] a letter dated the date of such Pricing Agreement,
and (iii) at the Time of Delivery for such Designated Securities,
Coopers & Lybrand shall have furnished to the Representative[s] a
letter dated such Time of Delivery, in each case in form reasonably
satisfactory to [Name of Representative[s]] or the Representative[s],
as the case may be, to the effect set forth in Annex III hereto and,
with respect to such letter dated such Time of Delivery, as to such
other matters as the Representative[s] may reasonably request as shall
be referred to in Schedule II to the Pricing Agreement applicable to
such Designated Securities;
(e) (i) At the time of execution of this Agreement, (ii) at
the time of execution of the Pricing Agreement for such Designated
Securities, and (iii) at the Time of Delivery
<PAGE> 15
15
for such Designated Securities the Company shall have caused to be
furnished to [Name of Representative[s]] or the Representative[s], as
the case may be, such additional letters from Coopers & Lybrand
relating to financial statements of Holdings and its subsidiaries
included in each Registration Statement and the Prospectus, if any, in
such form and dated as of such dates as [Name of Representative[s]] or
the Representative[s] shall reasonably request.
(f) 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, which in
any such case makes it impracticable or inadvisable in the reasonable
judgment of the Representative[s] to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented;
(g) Since the time of execution of the Pricing Agreement
applicable to the Designated Securities, the United States shall not
have become engaged in hostilities which have resulted in the
declaration of a national emergency or a declaration of war, which
makes it impracticable or inadvisable in the reasonable judgment of
the Representative[s] to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented; and
(h) The Company shall have furnished or caused to be
furnished to the Representative[s], at the Time of Delivery for such
Designated Securities, certificates in form satisfactory to them in
their reasonable judgment to the effect that: (i) the representations
and warranties of the Company contained in this Agreement are true and
correct on and as of such Time of Delivery as though made at and as of
such Time of Delivery; (ii) the Company has duly performed, in all
material respects, all obligations required to be performed by it
pursuant to the terms of this Agreement at or prior to such Time of
Delivery; (iii) no stop order suspending the effectiveness of either
Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission and all requests for additional
information on the part of the Commission have been complied with or
otherwise satisfied; and (iv) at and as of such Time of Delivery each
Registration Statement and the Prospectus as amended or supplemented
do not contain any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that no
such certificate shall apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter expressly for use therein.
<PAGE> 16
16
The obligations of the Company and the Underwriters of any
Designated Securities under the Pricing Agreement applicable to such Designated
Securities are subject to the additional condition that there shall have been
furnished to the Company and such Underwriters, at the Time of Delivery for
such Designated Securities, such certificates of officers and opinions of
counsel as shall, in the reasonable judgment of the Representative[s] and the
Company, be appropriate to indicate that the Indenture has been duly
authorized, executed and delivered by the Trustee and is a valid and binding
agreement of the Trustee.
7. (a) The Company will indemnify and hold harmless each
Underwriter of the applicable Designated Securities against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject with respect to such Designated Securities, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, either Registration Statement or the
Prospectus as amended or supplemented, or any amendment or supplement thereto
with respect to such Designated Securities, or arise out of or are based upon
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,
and will reimburse each such Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any of such documents
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through the
Representative[s] expressly for use therein; and provided, further, that the
Company shall not be liable to any Underwriter of Designated Securities or any
person controlling such Underwriter under the indemnity agreement in this
subsection (a) with respect to any of such documents to the extent that any
such loss, claim, damage or liability of such Underwriter or controlling person
results from the fact that such Underwriter sold such Designated Securities to
a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as
then amended or supplemented (excluding documents incorporated by reference),
whichever is most recent, if the Company has previously furnished copies
thereof to such Underwriter.
The indemnity agreement in this subsection (a) shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act.
(b) Each Underwriter of the applicable Designated
Securities will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject with
respect to such Designated Securities, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, either
<PAGE> 17
17
Registration Statement or the Prospectus as amended or supplemented, or any
amendment or supplement thereto with respect to such Designated Securities, or
arise out of or are based upon 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any of such documents in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representative[s] expressly for use therein; and will
reimburse the Company for any legal fees or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim.
The indemnity agreement in this subsection (b) shall be in
addition to any liability which the Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the meaning
of the Act.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written notice of the commencement of any action
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof, and in the event that such
indemnified party shall not so notify the indemnifying party within 30 days
following receipt of any such notice by such indemnified party, the
indemnifying party shall have no further liability under such subsection to
such indemnified party unless such indemnifying party shall have received other
notice addressed and delivered in the manner provided in the second paragraph
of Section 11 hereof of the commencement of such action; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party, and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party in its reasonable judgment, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7
is unavailable to an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters of the Designated Securities on
the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If,
however, the
<PAGE> 18
18
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters of the Designated Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters, in each
case as set forth in the table on the cover page of the Prospectus as amended
or supplemented with respect to such Designated Securities. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or such
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission, including,
with respect to any such Underwriter, the extent to which such losses, claims,
damages or liabilities (or actions in respect thereof) result from the fact
that such Underwriter sold such Designated Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference), whichever is most recent, if
the Company has previously furnished copies thereof to such Underwriter. The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
8. If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement applicable to such Securities, the Representative[s] may in
[its] [their] discretion arrange for [itself] [themselves] or for another party
or other parties to purchase such Underwriters' Securities on the terms
<PAGE> 19
19
contained herein. If within 36 hours after such default by any Underwriter the
Representative[s] [does] [do] not arrange for the purchase of such
Underwriters' Securities, then the Company shall be entitled to a further
period of 36 hours within which to procure another party or other parties to
purchase such Underwriters' Securities on such terms. In the event that,
within the respective prescribed periods, the Representative[s] [notifies]
[notify] the Company that [it has] [they have] so arranged for the purchase of
such Underwriters' Securities, or the Company notifies the Representative[s]
that it has so arranged for the purchase of such Underwriters' Securities, the
Representative[s] or the Company, respectively, shall have the right to
postpone the Time of Delivery for such Underwriters' Securities for a period of
not more than seven days in order to effect whatever changes may thereby be
made necessary in each Registration Statement or the Prospectus as amended or
supplemented, or any other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to each Registration Statement or
the Prospectus as amended or supplemented which in the opinion of Shearman &
Sterling and counsel for the Company referred to in Section 6(b) hereof may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
it had originally been a party to the Pricing Agreement with respect to such
Designated Securities. In the event that neither the Representative[s] nor the
Company arranges for another party or parties to purchase such Underwriters'
Securities as provided in this Section, the Company shall have the right to
require each non-defaulting Underwriter to purchase and pay for the
Underwriters' Securities which such non-defaulting Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Securities
and, in addition, to require each such non-defaulting Underwriter to purchase
the Underwriters' Securities which the defaulting Underwriter or Underwriters
shall have so failed to purchase up to an amount thereof equal to 10% of the
principal amount of the Underwriters' Securities which such non-defaulting
Underwriter has otherwise agreed to purchase under the Pricing Agreement
relating to such Designated Securities; provided, however, that if the
aggregate principal amount of Underwriters' Securities which any such
defaulting Underwriter or Underwriters shall have so failed to purchase is more
than one-eleventh of the aggregate principal amount of the Designated
Securities, then the Pricing Agreement relating to such Designated Securities
may be terminated either by the Company or, through the Representative[s], by
such Underwriters as have agreed to purchase in the aggregate 50% or more of
the remaining Designated Securities under the Pricing Agreement relating to
such Designated Securities, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses referred to in Section 5(f)
hereof and the indemnification provided in Section 7 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Underwriters and the Company hereunder,
as set forth in this Agreement or made by them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or the Company or any of its officers or directors or any
controlling person, and shall survive delivery of and payment for the
Designated Securities.
<PAGE> 20
20
10. If any Pricing Agreement shall be terminated pursuant
to Section 8 hereof, or if any Designated Securities are not delivered by the
Company because the condition set forth either in the last paragraph of Section
6 or in Section 6(g) has not been met, then the Company shall be under no
liability to any Underwriter with respect to the Designated Securities covered
by such Pricing Agreement except as provided in Section 5(f) and Section 7
hereof; but if for any other reason any Designated Securities are not delivered
by the Company as provided herein, the Company will be liable to reimburse the
Underwriters, through the Representative[s], for all out-of-pocket expenses,
including counsel fees and disbursements, as approved in writing by the
Representative[s], reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Company shall then have no further liability to any Underwriter with
respect to such Designated Securities except as provided in Section 5(f) and
Section 7 hereof.
11. In all dealings with the Company under this Agreement
and each Pricing Agreement, the Representative[s] of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
Company shall be entitled to act and rely upon any statement, request, notice
or agreement on behalf of any Underwriter made or given by the
Representative[s].
All statements, requests, notices and agreements hereunder
shall be in writing, or by telegram if promptly confirmed in writing, and if to
the Representative[s] or the Underwriters shall be sufficient in all respects
if delivered or sent by registered mail to the Representative[s] at [address of
Representative[s]], and if to the Company shall be sufficient in all respects
if delivered or sent by registered mail to the Company at The American Road,
Dearborn, Michigan 48121, attention of the Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 7(c) hereof shall be delivered
or sent by registered mail directly to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representative[s] upon request.
12. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters and the
Company, and to the extent provided in Section 7 and Section 9 hereof, the
officers and directors of the Company and any person who controls any
Underwriter or the Company, and their respective personal representatives,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No
purchaser of any of the Designated Securities from any Underwriter shall be
construed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence of each Pricing Agreement.
14. This Agreement and each Pricing Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
<PAGE> 21
21
15. This Agreement and each Pricing Agreement may be
executed by each of the parties hereto and thereto in any number of
counterparts, and by each of the parties hereto and thereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance hereof shall constitute a binding agreement.
Very truly yours,
FORD MOTOR CREDIT COMPANY
By
Accepted in New York, New York,
as of the date hereof:
[NAME OF REPRESENTATIVE[S]]
By
<PAGE> 22
ANNEX I
Pricing Agreement
[NAME OF REPRESENTATIVE[S]]
as Representative[s] of the
Several Underwriters named
in Schedule I hereto,
[Address of Representative[s]]
, 19
Dear Sirs:
Ford Motor Credit Company, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement dated , 19 (the "Underwriting
Agreement") between the Company and [Name of Representative[s]], to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety and shall be deemed to be a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty set forth in Section 2 of the
Underwriting Agreement relating to the Prospectus shall be deemed to have been
made as of the date of the Underwriting Agreement and, with respect to the
Prospectus as amended or supplemented applicable to the Designated Securities
covered by this Pricing Agreement, shall be deemed to have been made as of the
date of this Pricing Agreement. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
An amendment to [the][each] Registration Statement, or a
supplement to the Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you, is now proposed to be
filed, or, in the case of a supplement, mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities
<PAGE> 23
Ann. I - 2
set forth opposite the name of such Underwriter in Schedule I hereto [, less
the principal amount of Designated Securities covered by Delayed Delivery
Contracts, if any, [as may be specified in such Schedule II] [attributable to
such Underwriter as determined pursuant to Section 3 of the Underwriting
Agreement]].
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in the General Terms and Conditions of Underwriters'
Participation in Underwritten Public Offerings of Securities Managed by [Name
of Representative[s]], the form of which you have delivered to us. You
represent that you are authorized on behalf of yourselves and each of the
Underwriters to enter into this Pricing Agreement.
Very truly yours
FORD MOTOR CREDIT COMPANY
By
Accepted as of the date hereof:
On behalf of each of
the Underwriters
[NAME OF REPRESENTATIVE[S]]
By
<PAGE> 24
SCHEDULE I TO PRICING AGREEMENT
<TABLE>
<CAPTION>
Principal Amount
of Designated
Securities to
Underwriters be Purchased
------------ ---------------
<S> <C>
[Name of Representative[s]] ............... $
[Names of Other Underwriters] .............
---------------
Total ................................ $
===============
</TABLE>
<PAGE> 25
SCHEDULE II TO PRICING AGREEMENT
Title of Designated Securities:
[ %] [Extendable] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
$
Denominations:
[$1,000] [$5,000] [$ ]
Price to Public:
% of the principal amount of the Underwriters' Securities, plus
accrued interest from to [and accrued
amortization, if any, from to ]
Purchase Price by Underwriters:
% of the principal amount of the Underwriters' Securities, plus
accrued interest from to [and accrued
amortization, if any, from to ]
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No redemption provisions]
[The Designated Securities may be redeemed, [otherwise than through the
sinking fund,] in whole or in part at the option of the Company, in the
amount of $ or an integral multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or
before , , %, and if] redeemed during the
12-month period beginning ,
<PAGE> 26
Sch. II - 2
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
</TABLE>
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price
equal to the principal amount thereof, plus accrued interest to the
date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire $ principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus accrued interest] [, together with [cumulative]
[non-cumulative] redemptions at the option of the Company to retire an
additional $ principal amount of Designated Securities in the
years through at 100% of their principal amount plus accrued
interest.]
[If Designated Securities are Extendable Debt
Securities, insert--
Extendable Provisions:
The Designated Securities are repayable on , at the option of
the holder, at their principal amount with accrued interest. The
initial annual interest rate will be %, and thereafter the annual
interest rate will be adjusted on , , and to a rate not
less than % of the effective annual interest rate on
obligations with year maturities as of the [interest date 15 days
prior to maturity date] prior to such [insert maturity date].]
<PAGE> 27
Sch. II - 3
[If Designated Securities are Floating Rate Debt
Securities, insert--
Floating Rate Provisions:
The initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate
for -year [-month] [securities] [certificates
of deposit] by and [insert names of banks].] [and the
annual interest rate [thereafter] [from through ] will
be the interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus % of the
Interest Differential (the excess, if any, of (i) the then-current
weekly average per annum secondary market yield for - month
certificates of deposit over (ii) the then-current interest yield
equivalent of the weekly average per annum market discount rate for
-month Treasury bills); [from and thereafter the rate will be
the then-current interest yield equivalent plus % of the Interest
Differential].]
Time of Delivery:
[time and date], 19
Closing Location:
Shearman & Sterling, New York, New York
Funds in which Underwriters to make Payment:
[Immediately available funds] [[New York] Clearing House funds]
Delayed Delivery:
[None]
[Underwriters' commission shall be % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the order of
.]
[Minimum aggregate principal amount of Designated Securities to be
offered and sold pursuant to Delayed Delivery Contracts: $ .]
[Minimum aggregate principal amount of Designated Securities to be
offered and sold pursuant to Delayed Delivery Contracts: $ .]
[Additional Comfort Procedures:]
[Other Terms:]
<PAGE> 28
ANNEX II
Delayed Delivery Contract
, 19
FORD MOTOR CREDIT COMPANY
c/o [Name and address of Representative[s]]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Ford Motor Credit
Company (hereinafter called the "Company"), and the Company agrees to sell to
the undersigned,
principal amount of the Company's [Title of Designated
Securities] (hereinafter called the "Designated Securities") offered by the
Company's Prospectus dated , 19 , as amended or supplemented, receipt
of a copy of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof, plus accrued interest from the date from which
interest accrues as set forth below, and on the further terms and conditions
set forth in this contract. [The undersigned will purchase the Designated
Securities from the Company on , 19 (the "Delivery Date"), and
interest on the Designated Securities so purchased will accrue from ,
19 . Each of the Designated Securities will be dated the Delivery Date
thereof.] [The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts
set forth below:
<TABLE>
<CAPTION>
Principal Date from Which
Delivery Date Amount Interest Accrues
------------- --------- ----------------
<S> <C> <C>
, 19 $ , 19
, 19 $ , 19
</TABLE>
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date". Each of the Designated
Securities will be dated the Delivery Date thereof.]
Payment for the Designated Securities which the undersigned has
agreed to purchase on [the] [each] Delivery Date shall be made to the Company
or its order by
<PAGE> 29
Ann. II - 2
certified or official bank check in [New York] Clearing House funds at the
office of [at 9:30 a.m., New York City time,] on [the] [such]
Delivery Date upon delivery to the undersigned of the Designated Securities
then to be purchased by the undersigned in definitive fully registered form and
in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Designated Securities on [the] [each] Delivery Date shall be
subject to the conditions that (1) the purchase of Designated Securities by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject and (2) the
Company, on or before , 19 , shall have sold to the several
Underwriters, pursuant to the Pricing Agreement dated , 19 with the
Company, an aggregate principal amount of Designated Securities equal to $
minus the aggregate principal amount of Designated Securities covered by this
contract and other contracts similar to this contract. The obligation of the
undersigned to take delivery of and make payment for Designated Securities
shall not be affected by the failure of any purchaser to take delivery of and
make payment for Designated Securities pursuant to other contracts similar to
this contract.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of
this contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
It is understood that the acceptance by the Company of any
Delayed Delivery Contract (including this contract) is in the Company's sole
discretion and that, without limiting the foregoing, acceptances of such
contract need not be on a first-come, first-served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
mailed or delivered.
<PAGE> 30
Ann. II - 3
Yours very truly,
By
(Signature)
(Name and Title)
(Address)
Accepted, , 19
FORD MOTOR CREDIT COMPANY
By
THREE SIGNED COPIES OF THIS CONTRACT MUST BE RECEIVED BY [NAME
OF REPRESENTATIVE[S]] NOT LATER THAN 5:00 P.M. ON , ACCOMPANIED BY
A CERTIFICATE OF SECRETARY OR OTHER EVIDENCE, SATISFACTORY TO THE COMPANY, AS
TO THE AUTHORITY OF THE PERSON OR PERSONS SIGNING THIS CONTRACT.
<PAGE> 31
ANNEX III
Matters to be Covered by Letters of
Independent Certified Public Accountants
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder, and the statement in
[the][each] Registration Statement in answer to Item 10 of Form S-3 is accurate
insofar as it relates to them;
(ii) In their opinion, the audited consolidated financial
statements of the Company and its consolidated subsidiaries included or
incorporated by reference in the Company's Annual Report on Form 10-K most
recently filed with the Commission and covered by their report included therein
(the "audited financials") comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the published rules and regulations under the Act or the
Exchange Act, as applicable;
(iii) On the basis of limited procedures, not constituting an audit,
which have been carried out through a specified date not more than two business
days prior to the date of each such letter,* including (1) a reading of the
unaudited consolidated financial statements of the Company and its consolidated
subsidiaries included in the Company's Quarterly Reports on Form 10-Q filed
with the Commission from the beginning of the Company's fiscal year through the
date of such letter (the "quarterly financials"), (2) a reading of the latest
available monthly unaudited consolidated financial statements of the Company
and its consolidated subsidiaries (the "monthly financials"), (3) a reading of
the minutes of the meetings of the Board of Directors, Finance Committees and
stockholders of the Company and Holdings since the date of the audited
financials, (4) inquiries of certain officials of the Company and Holdings
responsible for financial and accounting matters as to transactions and events
subsequent to the date of the audited financials, and (5) such other procedures
and inquiries as may be described in each such letter, nothing has come to
their attention which has caused them to believe that:
- --------------------------
* In the case of letters delivered pursuant to Section 6(d)(ii) of the
Underwriting Agreement, such procedures will be carried out through a
specified date not more than two business days prior to the effective
date of [the][each] Registration Statement or not more than two business
days prior to the most recent report filed with the Commission
containing financial statements, if the date of such report is later
than such effective date.
<PAGE> 32
Ann. III - 2
(A) The quarterly financials or the monthly financials were not
prepared in conformity with generally accepted accounting principles
applied on a basis consistent in all material respects with those
followed in the preparation of the audited financials, except as
disclosed in the most recent report filed with the Commission containing
financial statements or in each such letter; or
(B) The quarterly financials or the monthly financials reflect
any adjustments other than normal recurring adjustments, except as
disclosed in the most recent report filed with the Commission containing
financial statements or in each such letter; or
(C) At the date of the monthly financials, there was any change
with respect to the Company and its consolidated subsidiaries in the
capital stock or any net change (i) in excess of $350,000,000 in
consolidated short-term debt (excluding the current portion of long-term
debt) or (ii) in excess of $25,000,000 in consolidated long-term debt
(including the current portion thereof) or any decrease in consolidated
stockholder's equity, as compared, in each case, with the corresponding
amounts in the consolidated balance sheet of the Company and its
consolidated subsidiaries as of the date of the most recent quarterly
financials, except, in all instances, for changes which the most recent
report filed with the Commission containing financial statements
disclosed have occurred or may occur or which are described in each such
letter; or
(D) At a recent date specified in each letter and in each case
satisfactory to the Representative[s] in their reasonable judgment,
there was any change with respect to the Company and its consolidated
subsidiaries in the capital stock or any net change (i) in excess of
$350,000,000 in consolidated short-term debt (excluding the current
portion of long-term debt) or (ii) in excess of $25,000,000 in
consolidated long-term debt (including the current portion thereof), as
compared, in each case, with the corresponding amounts in the
consolidatedbalance sheet of the Company and its consolidated
subsidiaries as of the date of the most recent quarterly financials,
except, in all instances, for changes which the most recent report filed
with the Commission containing financial statements disclosed have
occurred or may occur or which are described in each such letter; or
(E) For the period from the date of the most recent quarterly
financials through the date of the monthly financials, there was any
decrease, as compared with the corresponding period in the preceding
year, in the consolidated amounts of total financing revenue or
investment and other income or total revenue or income before income
taxes or net income of the Company and its consolidated subsidiaries,
except for decreases which the most recent report filed with the
Commission containing financial statements disclosed have occurred or
may occur or which are described in each such letter;
<PAGE> 33
Ann. III - 3
(iv) With respect to any unaudited pro forma financial information
included in [the][each] Registration Statement or the Prospectus as amended or
supplemented at the date of such letter (the "pro forma financials"), they are
unable to and do not express any opinion on the pro forma financials or on the
pro forma adjustments applied to the historical amounts included in the pro
forma financials. However, for the purposes of such letter, they have (1) read
the pro forma financials, (2) made inquiries of certain officials of the
Company responsible for financial and accounting matters as to the basis for
their determination of the pro forma adjustments and whether the pro forma
financials comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X, and (3) proved the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amounts in the pro forma financials and on the basis of such
procedures and inquiries, nothing has come to their attention which has caused
them to believe that:
(A) The pro forma financials do not comply as to form in all
material respects with the applicable requirements of Rule 11-02 of
Regulation S-X; or
(B) The pro forma adjustments have not been properly applied to
the historical amounts in the compilation of the pro forma financials;
and
(v) They have performed certain specified procedures, including
comparisons with certain specified accounting records of the Company and its
subsidiaries, with respect to certain items of information included in
[the][each] Registration Statement, in the most recent report filed with the
Commission from the beginning of the Company's fiscal year through the date of
such letter* and, in the case of each letter to be delivered pursuant to
Section 6(d)(iii) of the Underwriting Agreement, in the Prospectus as amended
or supplemented through the date of such letter, and have found such items to
be in agreement with such records.
- --------------------
* In the case of letters delivered pursuant to Section 6(d)(ii) of the
Underwriting Agreement, such procedures will be carried out through a
specified date not more than two business days prior to the effective
date of [the][each] Registration Statement or not more than two business
days prior to the most recent report filed with the Commission
containing financial statements, if the date of such report is later
than such effective date.
<PAGE> 1
EXHIBIT 4-A
FORD MOTOR CREDIT COMPANY,
Issuer
and
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION,
Trustee
INDENTURE
Dated as of August 1, 1994
UNSECURED AND UNSUBORDINATED DEBT SECURITIES
<PAGE> 2
FORD MOTOR CREDIT COMPANY
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 1, 1994
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C> <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) . . . . . . . . . . . . . . . . . . . . . . . . 15.04
</TABLE>
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate; Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
business day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
National Bankruptcy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
Note: The table of contents, consisting of pages i to vi, is not part of
this Indenture.
<PAGE> 4
ii
<TABLE>
<S> <C> <C>
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Repayment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Repayment Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Restricted Subsidiary; subsidiary of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register; Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act of 1939 or TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.02. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.04. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.05. Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.06. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.07. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.08. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.09. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.02. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.03. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.04. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.05. Securities Issuable in the Form of a Global Security . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.03. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.04. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.05. Registration; Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . 26
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SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.07. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.09. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.10. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.03. Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.04. Repayment of Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . 35
SECTION 5.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.06. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.02. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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SECTION 6.03. Trustee Not Responsible for Recitals in Indenture or in
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.04. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.05. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.06. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.07. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.08. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.09. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.10. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY
SECTION 7.01. Disclosure of Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.02. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.03. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Consolidations and Mergers of Company and Conveyances
Permitted Subject to Certain Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.02. Rights and Duties of Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.03. Securities to be Secured in Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.04. Officers' Certificate and Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.02. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.03. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.05. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.06. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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ARTICLE TEN
PARTICULAR COVENANTS OF THE COMPANY
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SECTION 10.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.03. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.04. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.05. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.06. Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.02. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.03. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.06. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.07. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE TWELVE
REPAYMENT AT OPTION OF HOLDERS
SECTION 12.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 12.02. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 12.03. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 12.04. When Securities Presented for Repayment Become Due and
Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 12.05. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.03. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
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SECTION 14.01. Exemption from Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Successors and Assigns of Company Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 15.02. Acts of Board, Committee or Officer of Successor Corporation
Valid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 15.03. Required Notices or Demands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 15.04. Indenture and Securities to be Construed in Accordance with the
Laws of the State of New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 15.05. Indenture May be Executed in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ACKNOWLEDGMENTS
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<PAGE> 9
INDENTURE, dated as of the 1st day of August, 1994, between
FORD MOTOR CREDIT COMPANY, a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter sometimes called the "Company"), and
FIRST FIDELITY BANK, NATIONAL ASSOCIATION, a national banking association
(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
unsecured and unsubordinated 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
<PAGE> 10
2
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as the same are amended from time to time.
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.
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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.
Company:
The term "Company" shall mean Ford Motor Credit 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 its Chairman of
the Board, its President, an Executive Vice President or a Vice President, and
by 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 City of Newark, the State of
New Jersey, at which at any particular time its corporate trust business shall
be administered, which office at the date of this Indenture is located at 765
Broad Street, 5th Floor, Attention: Corporate Trust Department, Newark, New
Jersey 07102, fax number (201) 430- 4963.
corporation:
The term "corporation" includes corporations, associations,
companies and business trusts.
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4
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.
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 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
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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.
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.
National Bankruptcy Act:
The term "National Bankruptcy Act" shall mean the Bankruptcy
Act or title 11 of the United States Code.
Officers' Certificate:
The term "Officers' Certificate", when used with reference to
the Company, shall mean a certificate signed by the Chairman of the Board, the
President, an Executive Vice President or a Vice President, and by 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
<PAGE> 14
6
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 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.
<PAGE> 15
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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.
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.
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.
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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.
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 Office (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.
Restricted Subsidiary; subsidiary of the Company:
The term "Restricted Subsidiary" shall mean a subsidiary of
the Company organized and existing under the laws of the United States of
America, a State or territory thereof or the District of Columbia or conducting
the major portion of its business in the United States of America, any of the
activities of which includes insurance underwriting or which had, at the end of
its last quarterly accounting period preceding the date of computation, assets
with a value in excess of $1,000,000 (net of the amount of any related unearned
income) representing accounts or notes receivable resulting from the financing
of new cars, trucks, tractors and farm and industrial equipment manufactured or
sold by Ford Motor Company or from the financing of used cars, trucks, tractors
and farm and industrial equipment of the same types, whether manufactured by
Ford Motor Company or others.
The term "subsidiary of the Company" shall mean a corporation
a majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by
<PAGE> 17
9
one or more subsidiaries of the Company, or by the Company and one or more
subsidiaries of the Company.
As used under this heading, the term "voting stock" means
stock having ordinary voting power to elect a majority of the directors
irrespective of whether or not stock of any other class or classes shall have
or might have voting power by reason of the happening of any contingency.
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 Register; Security Registrar:
The terms "Security Register" and "Security Registrar" shall
have the respective meanings set forth in Section 3.05.
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 instalment 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.
Trustee:
The term "Trustee" shall mean First Fidelity Bank, National
Association 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.
<PAGE> 18
10
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 from time to time, 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 10.05, 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 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,
<PAGE> 19
11
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 by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other 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 exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be
<PAGE> 20
12
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 (except as otherwise
provided in 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 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
<PAGE> 21
13
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 CREDIT COMPANY
___% NOTE DUE ________
__________________
[CUSIP No. __________ ]
$
No.
FORD MOTOR CREDIT 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 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
<PAGE> 22
14
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 either the
Borough of Manhattan, the City and State of New York, the City of Newark, the
State of New Jersey or the City of Philadelphia, the Commonwealth of
Pennsylvania, 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 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].
<PAGE> 23
15
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.
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 its
Secretary, manually or in facsimile, and a facsimile of its corporate seal to
be imprinted hereon.
Dated:
[CORPORATE SEAL]
FORD MOTOR CREDIT 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 _______, 1994 (herein called the "Indenture"), between
the Company and First Fidelity Bank, National Association, 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 $ ].
<PAGE> 24
16
[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 30 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 percentages of the principal amount): If redeemed [on or before
, %, and if redeemed] during the 12-month period beginning of
the years indicated,
<TABLE>
<CAPTION>
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 instalments 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 30 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,
<PAGE> 25
17
<TABLE>
<CAPTION>
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the 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) with accrued interest to the Redemption Date, but
interest instalments 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 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
<PAGE> 26
18
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 either the Borough of
Manhattan, the City and State of New York, or the City of Newark, the State of
New Jersey or the City of Philadelphia, the Commonwealth of Pennsylvania,
[which will be located initially at the office of the Trustee at 765 Broad
Street, Newark, New Jersey 07102,] 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.]]
[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 66 2/3% 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.
<PAGE> 27
19
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 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 in the Security
Register 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
<PAGE> 28
20
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 the Repayment Date and not later than 15 days
prior to the Repayment Date by the Company at its office or agency either in
the Borough of Manhattan, the City and State of New York, the City of Newark,
the State of New Jersey or the City of Philadelphia, Commonwealth of
Pennsylvania [, which will be located initially at the office of the Trustee at
765 Broad Street, Newark, New Jersey 07102].
[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.]
<PAGE> 29
21
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.
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION,
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 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
<PAGE> 30
22
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.
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
<PAGE> 31
23
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 of Payment on Securities of the series;
(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 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;
<PAGE> 32
24
(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); and
(16) 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).
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 its Secretary, 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
<PAGE> 33
25
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 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
<PAGE> 34
26
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.
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
<PAGE> 35
27
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 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> 36
28
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 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
<PAGE> 37
29
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 in the Security Register 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.
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
<PAGE> 38
30
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. All cancelled
Securities held by the Trustee shall be destroyed by it and 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.
This Indenture shall upon Company Request cease to be of further effect (except
as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of
<PAGE> 39
31
redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.06
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the Trustee under Section
4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as a Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest, if any, for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
SECTION 4.03. 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
<PAGE> 40
32
and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
SECTION 4.04. 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 written 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):
(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
<PAGE> 41
33
(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 National Bankruptcy Act
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 the National Bankruptcy Act 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 National Bankruptcy Act 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 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
<PAGE> 42
34
principal amount of the Outstanding Securities of that series 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, 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
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.
<PAGE> 43
35
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 instalment 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, and such default shall have
continued for a period of five business days -- 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 instalments 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.
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,
<PAGE> 44
36
(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 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,
<PAGE> 45
37
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 shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders shall have offered to the
Trustee reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 90 days after its receipt of such
notice, request and offer of indemnity shall have failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 5.12 during
such 90-day period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable and common
benefit of all of such Holders.
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
<PAGE> 46
38
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 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 Outstanding Securities of any
series 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; provided, however, that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the
rights of Holders not taking part in such direction, and
<PAGE> 47
39
(4) such direction would not involve the Trustee in
personal liability, as the Trustee, upon being advised by counsel,
shall reasonably determine.
SECTION 5.13. Waiver of Past Defaults. The Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium, if
any, on) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, 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 Indenture, and the Company, the Trustee and the Holders
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.
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
<PAGE> 48
40
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 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 and in accordance therewith;
(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
<PAGE> 49
41
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(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 and Qualification 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 in writing with the Company to pay
thereon from time to time. So long as no Event of Default shall have
<PAGE> 50
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occurred and be continuing, all interest allowed on any such 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
<PAGE> 51
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pursuant 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, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor Trustee.
<PAGE> 52
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(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, 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
<PAGE> 53
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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,
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,
<PAGE> 54
46
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 September
1, 1995, and on or before September 1 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 July 1 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 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.
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(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. The Company may
consolidate with, or sell or convey all or substantially all its assets to, or
merge with or into any other corporation; provided, however, that in any such
case, (i) the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a State thereof and
such corporation shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities, according to their tenor, and
the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be performed by the Company, by an indenture
supplemental hereto satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation, and (ii) such successor corporation shall not,
immediately after such merger or consolidation or such sale or conveyance, be
in default in the performance of any such covenant or condition.
SECTION 8.02. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company with the same effect as if it had
been named herein as the Company, and the predecessor corporation shall be
relieved of any further obligation under this Indenture. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, 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 the Securities so
issued shall in all respects have the same legal
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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 or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 8.03. Securities to be Secured in Certain Events.
If, upon any such consolidation or merger of the Company with or into any other
corporation, or upon any sale or conveyance of the property of the Company as
an entirety or substantially as an entirety to any other corporation, any asset
of the Company or a Restricted Subsidiary would thereupon become subject to any
Mortgage (as defined in Section 10.04), then unless the Company could create
such Mortgage pursuant to Section 10.04 without equally and ratably securing
the Securities, the Company, prior to or at the time of such consolidation,
merger, sale or conveyance, will cause the Securities to be secured equally and
ratably with (or prior to) the indebtedness or obligation secured by such
Mortgage.
SECTION 8.04. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Section 6.02, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale or conveyance, and any such assumption,
complies with the provisions of this Article Eight.
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:
(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;
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49
(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 10.04 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 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
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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 of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, 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 execution thereof) 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 Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall (i) extend the Stated Maturity of the principal of (or premium, if any,
on), or any installment of principal of or interest, if any, on, any Security,
or reduce the principal amount thereof or the rate of interest thereon, or
reduce the amount of principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption
or repayment at the option of the Holder, on or after the Redemption Date or
Repayment Date, as the case may be), without the consent of the Holder of each
Outstanding Security so affected, or (ii) reduce the aforesaid percentage in
principal amount of the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental indenture, without the
consent of the Holders of all the Outstanding Securities of such series.
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 the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Company accompanied by a copy of a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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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.
SECTION 9.06. Record Date. If the Company shall solicit
from the Holders any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders entitled to
consent to any supplemental indenture, agreement or instrument or any waiver,
and shall promptly notify the Trustee of any such record date. If a record
date is fixed, those Persons who were Holders at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to consent
to such supplemental indenture, agreement or instrument or waiver or to revoke
any consent previously given, whether or not such Persons continue to be
Holders after such record date. The record date shall be a date no more than
30 days prior to the first solicitation of Holders generally in connection
therewith and no later than the date such solicitation is completed. No such
consent shall be valid or effective for more than 90 days after such record
date and no action shall be taken in respect of such record consent after such
90 day period.
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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 benefit of the
Persons entitled thereto a sum sufficient to pay the principal (or premium, if
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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, if any, 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, if any,
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.
SECTION 10.04. Limitation on Liens. Except as hereinbelow
in this Section provided, the Company will not at any time, and will not permit
any Restricted Subsidiary at any time to, pledge or otherwise subject to any
lien (any such pledge or lien being hereinafter in this Section called a
"Mortgage") any of its property or assets without
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thereupon expressly securing the due and punctual payment of the principal of
(and premium, if any, on) and the interest on the Securities equally and
ratably with (or prior to) any and all other obligations and indebtedness
secured by such Mortgage, so long as any such other obligations and
indebtedness shall be so secured, and the Company covenants that if and when
any such Mortgage is created, the Securities will be so secured thereby;
provided, however, that this limitation shall not apply to Mortgages securing
indebtedness the aggregate amount of which at any one time outstanding shall
not exceed $5,000,000; and, provided, further, that this limitation shall not
apply to:
(a) Mortgages securing indebtedness incurred by the
Company or any Restricted Subsidiary in connection with the exporting
of goods to or between, or the marketing thereof in, countries outside
the United States, in connection with which the Company or such
Restricted Subsidiary shall have the right, in accordance with
customary and established banking practice, to deposit, or otherwise
subject to a lien, cash, securities or receivables, for the purpose of
securing banking accommodations or as the basis for the issuance of
bankers' acceptances or in aid of other similar borrowing
arrangements;
(b) Mortgages on accounts receivable payable in foreign
currencies securing indebtedness incurred and payable outside the
United States;
(c) Mortgages in favor of the Company or any Restricted
Subsidiary;
(d) Mortgages in favor of any governmental body to secure
progress, advance or other payments pursuant to any contract or
provision of any statute or deposits with any governmental body
required by statute or regulation in connection with the conduct of
the business of the Company or any Restricted Subsidiary;
(e) deposits of assets of the Company or any Restricted
Subsidiary with any surety company or clerk of any court, or in
escrow, as collateral in connection with, or in lieu of, any bond on
appeal by the Company or any Restricted Subsidiary from any judgment
or decree against it, or in connection with other proceedings in
actions at law or in equity by or against the Company or any
Restricted Subsidiary;
(f) Mortgages on any property, tangible or intangible,
real or personal, existing at the time of acquisition of such property
(including acquisition through merger or consolidation) or to secure
the payment of all or any part of the purchase price thereof or to
secure any indebtedness incurred prior to, at the time of, or within
60 days after, the acquisition thereof for the purpose of financing
all or any part of the purchase price thereof; and
(g) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Mortgage or Mortgages referred to in the foregoing subsections (a) to
(f) inclusive; provided, however, that
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such extension, renewal or replacement Mortgage shall be limited to
all or part of the same property that secured the Mortgage or
Mortgages extended, renewed or replaced (plus improvements on such
property).
SECTION 10.05. 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, an Officers' Certificate, one such officer signing must be the
principal executive officer, principal financial officer or the principal
accounting officer of the Company, stating, as to each officer signing such
certificate, whether or not to the best of his knowledge the Company is in
default in the performance and observance of any of the terms, provisions and
conditions hereof, and, if the Company shall be in default, specifying all such
defaults and the nature thereof of which he may have knowledge.
SECTION 10.06. 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
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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 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 30 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.
<PAGE> 65
57
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 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.
<PAGE> 66
58
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.
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
<PAGE> 67
59
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.
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
<PAGE> 68
60
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
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
SECTION 14.01. 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 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,
<PAGE> 69
61
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 FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. 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 successors
and assigns, whether so expressed or not.
SECTION 15.02. 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 15.03. 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 Credit 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 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.
<PAGE> 70
62
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 15.04. 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 15.05. 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.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION hereby accepts the
trusts in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
<PAGE> 71
63
IN WITNESS WHEREOF, FORD MOTOR CREDIT 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 FIRST FIDELITY BANK, NATIONAL ASSOCIATION 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 Trust Officers.
FORD MOTOR CREDIT COMPANY
By
/s/ H. D. SMITH
-------------------
Name: H. D. Smith
Title: Secretary
Attest: /s/ R. P. Conrad
--------------------
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION
By /s/ ROBERT FRIER
-------------------
Name: Robert Frier
Title: Vice President
Attest: /s/ Diane Dowdell
--------------------
<PAGE> 72
STATE OF MICHIGAN )
) ss.:
COUNTY OF WAYNE )
On this 10th day of August, 1994, before me personally came
Hurley D. Smith, to me known, who, being by me duly sworn, did depose
and say that he resides at , that he is Secretary of FORD MOTOR
CREDIT 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.
/s/ GWENDOLYN A. MCGOWAN
-------------------------------------
Gwendolyn A. McGowan
Notary Public, Wayne County, Michigan
My Commission Expires June 11, 1996
<PAGE> 73
STATE OF NEW JERSEY )
) ss.:
COUNTY OF ESSEX )
On this 8th day of August, 1994, before me personally
came Robert Frier, to me known, who, being by me duly sworn, did depose and say
that he resides at 765 Broad Street, that he is Vice President of FIRST
FIDELITY BANK, NATIONAL ASSOCIATION, 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.
/s/ HERIBERTO PANETO
--------------------------------------
Heriberto Paneto
Notary Public of New Jersey
My Commission Expires January 22, 1998
<PAGE> 1
EXHIBIT 5
August 26, 1994
Ford Motor Credit Company
The American Road
Dearborn, Michigan 48121 -
Dear Sirs:
This will refer to the Registration Statement on Form S-3 (the
"Registration Statement") filed by Ford Motor Credit Company (the "Company") on
the date hereof with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the proposed sale by the Company of the debt securities covered
thereby (the "Debt Securities").
As Secretary and Corporate Counsel of the Company, I am familiar with
the Certificate of Incorporation and the By-Laws of the Company and with its
affairs. I also have examined, or caused to be examined, such other documents
and instruments and have made, or caused to be made, such further investigation
as I have deemed necessary or appropriate in connection with this opinion.
Based upon the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing as a
corporation under the laws of the State of Delaware.
2. When (a) the registration requirements of the Securities Act and
such Blue Sky or securities laws as may be applicable shall have been complied
with, (b) the Indenture dated as of August 1, 1994 between the Company and
First Fidelity Bank, National Association, Trustee, (c) the form or forms of the
Debt Securities and the final terms thereof shall have been duly approved or
established in accordance with the terms of the Indenture, and (d) the Debt
Securities shall have been duly executed, authenticated, completed, issued and
delivered against payment therefor, the Debt Securities will thereupon be
legally issued and binding obligations of the Company.
I hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, I do not admit that I am in
the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission issued
thereunder.
Very truly yours,
/s/ Hurley D. Smith
-----------------------
Hurley D. Smith
<PAGE> 1
Exhibit 12-A
FORD MOTOR CREDIT COMPANY AND SUBSIDIARIES
CALCULATION OF RATIO OF EARNINGS
TO FIXED CHARGES
(dollar amounts in millions)
<TABLE>
<CAPTION>
First Half For the Years Ended December 31
--------------- ------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges
Interest expense $ 1,611.7 $ 1,452.8 $ 2,943.5 $ 3,108.3 $ 3,840.6 $ 4,307.4 $ 4,647.4
Rents 6.4 5.1 11.0 10.8 8.9 7.5 6.4
--------- --------- --------- --------- --------- --------- ---------
Total fixed
charges 1,618.1 1,457.9 2,954.5 3,119.1 3,849.5 4,314.9 4,653.8
Earnings
Income before income
taxes and cumulative
effects of changes in
accounting principles 1,029.7 945.7 1,875.0 1,323.2 1,075.1 763.2 630.0
Less equity in net income
of affiliated companies 104.8 87.4 198.3 155.2 191.0 145.0 30.8
Less minority interest
in net income of
subsidiaries 5.2 4.2 7.9 6.1 2.3 0 0
--------- --------- --------- --------- --------- --------- ---------
Earnings before fixed
charges $ 2,537.8 $ 2,312.0 $ 4,623.3 $ 4,281.0 $ 4,731.3 $ 4,933.1 $ 5,253.0
========= ========= ========= ========== ========= ========= =========
Ratio of earnings to
fixed charges 1.57 1.59 1.56 1.37 1.23 1.14 1.13
========= ========= ========= ========== ========= ========= =========
</TABLE>
For purposes of the Ford Credit ratio, earnings consist of income before
taxes and cumulative effects of changes in accounting principles and fixed
charges. Income before income taxes and cumulative effects of changes in
accounting principles of Ford Credit excludes the equity in net income of all
unconsolidated affiliates and minority interest in net income of subsidiaries.
Fixed charges consist of interest on borrowed funds, amortization of debt
discount, premium, and issuance expense, and one-third of all rental expense
(the proportion deemed representative of the interest factor).
<PAGE> 1
Exhibit 12-B
Ford Motor Company and Subsidiaries
CALCULATION OF RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
(in millions)
<TABLE>
<CAPTION>
Six
Months For the Years Ended December 31
---------------- -----------------------------------------
1994 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings
Income/(loss) before income taxes
and cumulative effects of changes
in accounting principles $ 4,674 $ 4,003 $ (127) $(2,587) $ 1,495 $ 6,030
Equity in net (income)/loss of
affiliates plus dividends from
affiliates (30) (98) 26 69 171 (137)
Adjusted fixed charges a/ 3,797 7,648 8,113 9,360 9,690 9,032
------- ------- ------- ------- ------- -------
Earnings $ 8,441 $11,553 $ 8,012 $ 6,842 $11,356 $14,925
======= ======= ======= ======= ======= =======
Combined Fixed Charges and
Preferred Stock Dividends
- --------------------------
Interest expense b/ $ 3,629 $ 7,351 $ 7,987 $ 9,326 $ 9,647 $ 8,624
Interest portion of rental
expense c/ 133 266 185 124 105 103
Preferred stock dividend requirements
of majority-owned subsidiaries d/ 79 115 77 56 83 16
------- ------- ------- ------- ------- -------
Fixed charges 3,841 7,732 8,249 9,506 9,835 8,743
Ford preferred stock dividend
requirements e/ 255 442 317 26 0 0
------- ------- ------- ------- ------- -------
Total combined fixed charges
and preferred stock dividends $ 4,096 $ 8,174 $ 8,566 $ 9,532 $ 9,835 $ 8,743
======= ======= ======= ======= ======= =======
Ratios
- ------
Ratio of earnings to fixed charges 2.2 1.5 f/ g/ 1.2 1.7
Ratio of earnings to combined fixed
charges and preferred stock dividends 2.1 1.4 h/ i/ 1.2 1.7
</TABLE>
- ---------------------
a/ Fixed charges, as shown below, have been adjusted to exclude the amount of
interest capitalized during the period and preferred stock dividend
requirements of majority-owned subsidiaries.
b/ Includes interest, whether expensed or capitalized, and amortization of debt
expense and discount or premium relating to any indebtedness.
c/ One-third of all rental expense is deemed to be interest.
d/ Preferred stock dividend requirements of Ford Holdings, Inc., have been
increased to an amount representing the pre-tax earnings which would be
required to cover such dividend requirements based on Ford's effective
income tax rates for all periods except 1992. The U.S. statutory rate of
34% was used for 1992.
e/ Preferred stock dividend requirements of Ford Motor Company, have been
increased to an amount representing the pre-tax earnings which would be
required to cover such dividend requirements based on Ford's effective
income tax rates for all periods except 1992. The U.S. statutory rate of
34% was used for 1992.
f/ Earnings were inadequate to cover fixed charges by $237 million.
g/ Earnings were inadequate to cover fixed charges by $2,664 million.
h/ Earnings were inadequate to cover combined fixed charges and preferred stock
dividends by $554 million.
i/ Earnings were inadequate to cover combined fixed charges and preferred
stock dividends by $2,690 million.
<PAGE> 1
Exhibit 15
Ford Motor Credit Company
The American Road
Dearborn, Michigan
We are aware that our reports dated April 27, 1994 and July 27, 1994
accompanying the unaudited interim financial information of Ford Motor Credit
Company and Subsidiaries for the periods ending March 31, 1994 and 1993, and
June 30, 1994 and 1993, included in the Ford Motor Credit Company Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1994 and June 30, 1994
will be incorporated by reference in this Registration Statement on Form S-3.
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.
Detroit, Michigan
August 26, 1994
<PAGE> 1
EXHIBIT 23-A
CONSENT OF COOPERS & LYBRAND L.L.P.
We consent to the incorporation by reference in Ford Motor Credit Company's
Registration Statement on Form S-3 of our report dated February 1, 1994 on our
audits of the consolidated financial statements and financial statement
schedule of Ford Motor Credit Company and Subsidiaries at December 31, 1993 and
1992 and for each of the three years in the period ended December 31, 1993,
which report contains an explanatory paragraph indicating Ford Credit changed
its methods of accounting for postretirement health care benefits and income
taxes in 1992 and is included in the Ford Motor Credit Company Annual Report on
Form 10-K. We also consent to the reference to our firm under the caption
"Experts" in the Registration Statement.
/s/ COOPERS & LYBRAND L.L.P.
Detroit, Michigan
August 26, 1994
<PAGE> 1
EXHIBIT 24
FORD MOTOR CREDIT COMPANY
Certificate of an Assistant Secretary
The undersigned, Richard P. Conrad, an Assistant Secretary of Ford
Motor Credit Company, a Delaware corporation (the "Company"), does hereby
certify that the resolutions attached as Exhibit 1 to this Certificate were
duly adopted by the Board of Directors of the Company on February 26, 1986,
March 2, 1988, March 10, 1993 and September 29, 1993 at meetings duly called
and held at which quorums were present and acted throughout, and such
resolutions have not been amended, modified, rescinded or revoked and are in
full force and effect on the date hereof.
WITNESS my hand and seal of the Company this 26th day of
August, 1994.
/s/ Richard P. Conrad
--------------------------
Richard P. Conrad
Assistant Secretary
<PAGE> 2
EXHIBIT I
Resolutions
Public Offering of Senior and Subordinated Debt
RESOLVED, That the Company (i) is authorized during any calendar year,
commencing with calendar year 1986, to register with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), debt securities, to be denominated when
issued in U.S. dollars or any foreign currency or currencies, consisting of
notes, debentures, warrants, guarantees or other securities, or any
combination thereof ("Securities"), in an aggregate principal amount not to
exceed U.S. $16,000,000,000 and (ii) is authorized during any calendar
year, commencing with calendar year 1986, to issue and sell, in one or more
public offerings in an aggregate principal amount not to exceed
$16,000,000,000, (a) Securities registered with the Commission pursuant to
the provisions of the Act and (b) all of the Company's Debt Securities
registered with the Commission pursuant to Registration Statement No.
33-2887 and Registration Statement No. 33-1464 prior to the adoption of
these resolution and unissued and unsold at the time of the adoption of
these resolutions (such Securities and such Debt Securities registered on
Registration Statement No. 33-2887 and Registration Statement No. 33-1464
pursuant to the provisions of the Act prior to the adoption of these
resolutions are hereinafter collectively called "Underwritten Debt
Securities") with such maturity dates, in such relative principal amounts,
in such currencies, at such interest rates (either on a fixed or floating
basis) or original issue discounts, as applicable, and upon such additional
terms and conditions (including, without limitation, provisions for
subordination) as may be fixed by any two of the Chairman of the Board of
Directors, the President, the Executive Vice President-Finance and the
Treasurer and that any two of the Chairman of the Board of Directors, the
President, the Executive Vice President-Finance and the Treasurer be and
hereby are authorized to determine the terms of the Underwritten Debt
Securities, including, without limitation, the respective maturity dates,
the relative principal amounts, the respective currencies, the stated rates
of interest (either on a fixed or floating basis) to be borne by, or the
original issue discounts applicable to, the Underwritten Debt Securities,
any provisions for subordination of the Underwritten Debt Securities, the
terms and the price or prices for any pre-payment or redemption of the
Underwritten Debt Securities pursuant to a sinking fund or otherwise, and
the purchase prices to be paid by the several underwriters or any firm,
institution, partnership or other person purchasing the Underwritten Debt
Securities, or either of them, pursuant to a Purchase Agreement (as
hereinafter defined).
RESOLVED, That the preparation by the Company of one or more
Registration Statements on Form S-3 or such other form as may be
appropriate covering (a) the Underwritten Debt Securities or (b) the
Underwritten Debt Securities together with Agency Notes (as such term is
defined in these resolutions under the caption "Public Offering of Notes
Sold Through Sales Agents"), including prospectuses, exhibits and other
documents, to be filed with the Commission for the purpose of registering
(i) the offer and sale of the Underwritten Debt Securities or (ii) the
offer and sale of the Underwritten Debt Securities together with Agency
Notes under the Act, be and it hereby is in all respects approved; that the
directors and appropriate officers of the Company, and each of them, be and
<PAGE> 3
hereby are authorized to sign and execute in their own behalf, or in the
name and on behalf of the Company, or both, as the case may be, any such
Registration Statement, with such changes, if any, therein, including
amendments to the prospectus and the addition or amendment of exhibits and
other documents relating thereto or required by law or regulation in
connection therewith, all in such form as such directors and officers may
deem necessary, appropriate or desirable, as conclusively evidenced by
their execution thereof, and that the appropriate officers of the Company,
and each of them, be and hereby are authorized to cause any such
Registration Statement, so executed, to be filed with the Commission; and,
prior to the effective date of any such Registration Statement the appro-
priate officers of the Company are directed to use their best efforts to
furnish each director and each officer signing such Registration Statement
with a copy of such Registration Statement, and if, prior to the effective
date of any such Registration Statement, material changes therein or
material additions thereto are proposed to be made, other than changes and
additions of a type authorized under these resolutions to be approved by
officers of the Company as provided in the immediately preceding
resolution, the appropriate officers of the Company are directed to use
their best efforts to furnish each director, and each officer signing any
such Registration Statement, with a copy of such Registration Statement and
each amendment thereto as filed with the Commission, or a description of
such changes or additions, or a combination thereof, in as complete and
final form as practicable and in sufficient time to permit each director
and each such officer so desiring to object to any part of any such
Registration Statement before it becomes effective.
RESOLVED, That the directors and appropriate officers of the Company,
and each of them, be and hereby are authorized to sign and execute in their
own behalf, or in the name and on behalf of the Company, or both, as the
case may be, any and all amendments (including post-effective amendments)
to any Registration Statement (including Registration Statement No. 33-2887
for any purpose, including, without limitation, the purpose of permitting
the issuance of the Debt Securities registered thereunder in any foreign
currency and/or providing for the issuance of any type of security included
in the definition of "Security" as defined in the first resolution set
forth above), including amendments to the prospectus and the addition or
amendment of exhibits and other documents relating thereto or required by
law or regulation in connection therewith, all in such form, with such
changes, if any, therein, as such directors and officers may deem
necessary, appropriate or desirable, as conclusively evidenced by their
execution thereof, and that the appropriate officers of the Company, and
each of them, be and hereby are authorized to cause such amendment or
amendments, so executed, to be filed with the Commission; and if, prior to
the effective date of each such post-effective amendment, material changes
or material additions are proposed to be made in or to any such
Registration Statement or any amendment thereto in the form in which it
most recently became effective, other than changes and additions of a type
authorized under these resolutions to be approved by officers of the
Company, the appropriate officers of the Company are directed to use their
best efforts to furnish each director, and each officer signing such post-
effective amendment, with a copy of such post-effective amendment or a
<PAGE> 4
description of all material changes or additions therein, or a combination
thereof, in as complete and final form as practicable and in sufficient
time to permit each director and each such officer so desiring to object to
any part of such post-effective amendment before it becomes effective.
RESOLVED, That each officer and director who may be required to sign and
execute any such Registration Statement or any amendment thereto or document in
connection therewith (whether on behalf of the Company, or as an officer or
director of the Company, or otherwise), be and hereby is authorized to execute
a power of attorney appointing W. E. Odom, J. D. Bringard, H. D. Smith, W. O.
Staehlin, D. M. Brandi, R. P. Conrad, L. J. Ghilardi and S. P. Thomas, and
each of them, severally, his true and lawful attorney or attorneys to sign in
his name, place and stead in any such capacity any such Registration Statement
and any and all amendments (including post-effective amendments) thereto and
documents in connection therewith, and to file the same with the Commission,
each of said attorneys to have power to act with or without the other, and to
have full power and authority to do and perform, in the name and on behalf of
each of said officers and directors who shall have executed such a power of
attorney, every act whatsoever which such attorneys, or any of them, may deem
necessary, appropriate or desirable to be done in connection therewith as fully
and to all intents and purposes as such officers or directors might or could do
in person.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Secretary, any
Assistant Secretary, the Controller, the Vice President-Treasurer, the
Treasurer and any Assistant Treasurer, and each of them, be and hereby are
authorized in the name and on behalf of the Company to take any and all
action which such persons, or any of them, may deem necessary, appropriate
or desirable in order to obtain a permit, register or qualify the
Underwritten Debt Securities for issuance and sale or to request an
exemption from registration of such securities or to register or obtain a
license for the Company as a dealer or broker under the securities laws of
such of the states of the United States of America as such persons, or any
of them, may deem necessary, appropriate or desirable, and in connection
with such registrations, permits, licenses, qualifications and exemptions
to execute, acknowledge, verify, deliver, file and publish all such
applications, reports, resolutions, irrevocable consents to service of
process, powers of attorney and other papers and instruments as may be
required under such laws, and to take any and all further action which such
persons, or any of them, may deem necessary, appropriate or desirable in
order to maintain such registrations in effect for as long as such persons,
or any of them, may deem to be in the best interests of the Company.
RESOLVED, That Ford Motor Credit Company hereby designates Goldman,
Sachs & Co., a licensed California broker-dealer, or any other licensed
California broker-dealer designated by the Chairman of the Board of
Directors, the President, any Executive Vice President, any Vice President,
the Secretary, any Assistant Secretary, the Vice President-Treasurer, the
Treasurer and any Assistant Treasurer, and each of them, its attorney-in-
fact for the purpose of executing and filing one or more applications and
<PAGE> 5
amendments thereto on behalf of the Company, under applicable provisions of
the California Corporate Securities Law of 1968, for the registration or
qualification of part or all of the Underwritten Debt Securities (whether
or not subordinated) for offering and sale in the State of California.
BE IT RESOLVED THAT RICHARD D. LATHAM, Securities Commissioner, State
Securities Board, of the State of Texas, and his successor in office, is
made, constituted and appointed the true and lawful attorney-in-fact for
and in the State of Texas for this corporation, upon whom all process of
law against this corporation in any action at law or legal proceeding
growing out of the Texas Securities Act may be served, subject to and in
accordance with all the provisions of the laws of the State of Texas and
all amendments thereto, and this corporation agrees that any and all lawful
process against it may be served upon its said attorney-in-fact, RICHARD D.
LATHAM, or his successor in office, shall be deemed valid personal service
upon this corporation and shall be of the same force and validity as if
served upon this corporation; and that all process served upon the said
Securities Commissioner shall be and have the same effect as if this
corporation were organized and created under the laws of the State of Texas
and had been lawfully served with process therein; and
BE IT FURTHER RESOLVED that the corporation by and through its
President or any Vice President and Secretary or any Assistant Secretary
execute a Power of Attorney to the said RICHARD D. LATHAM, Securities
Commissioner of the State of Texas, and his successor in office,
incorporating the provisions of this resolution therein.
RESOLVED, That any and all haec verba resolutions which may be required
by the Blue Sky or securities laws of any state in which the Company
intends to offer to sell its securities be, and they hereby are, adopted;
that the proper officers of the Company be, and they hereby are, authorized
to certify that such resolutions were duly adopted at this meeting; and
that the Secretary of the Company shall cause a copy of each resolution so
certified to be attached to the minutes of this meeting.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized on behalf of the Company to take such
action as such officers, or any of them, may deem necessary, appropriate or
desirable to make application for the listing on the New York Stock
Exchange or any other Stock Exchange of the Underwritten Debt Securities
and that the Chairman of the Board of Directors, the President, any
Executive Vice President, any Vice President, the Secretary, any Assistant
Secretary, the Controller, the Treasurer and any Assistant Treasurer, and
each of them, be and hereby are designated a representative of the Company
to appear before the Corporate Services Division of any such Exchange and
take all such other steps as such persons, or any of them, may deem
necessary, appropriate or desirable to effect such listing.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Secretary, any
Assistant Secretary, the Controller, the Treasurer and any Assistant
<PAGE> 6
Treasurer, and each of them, be and hereby are authorized to execute and
file with the Commission and the New York Stock Exchange, Inc., or any
other Stock Exchange in the name and on behalf of the Company, one or more
Registration Statements, on Form 8-A or such other form as may be
appropriate, including any and all exhibits and other documents relating
thereto, for the registration under the Securities Exchange Act of 1934 of
the Underwritten Debt Securities and any and all amendments to such
Registration Statements, in such forms as the person or persons executing
the same may deem necessary, appropriate or desirable, as conclusively
evidenced by his or their execution thereof.
RESOLVED, That, in connection with each application of the Company to
the New York Stock Exchange, Inc., or any other Stock Exchange, for the
listing on such Exchange of the Underwritten Debt Securities, the Company
enter into an agreement providing for the indemnification by the Company of
the New York Stock Exchange, Inc., or any other Stock Exchange, its
governors, officers, employees and its subsidiary companies and innocent
purchasers for value of the Underwritten Debt Securities or any one or more
of them, as the case may be, from and against losses, liabilities, claims,
damages or accidents in connection with the use of facsimile signatures on
the Underwritten Debt Securities; and that the Chairman of the Board of
Directors, the President, any Executive Vice President, any Vice President,
the Secretary, any Assistant Secretary, the Controller, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized in
the name and on behalf of the Company and under its corporate seal to
execute and deliver to the New York Stock Exchange, Inc., or any other
Stock Exchange, the aforesaid indemnification agreement in such form as the
person or persons executing the same may deem necessary, appropriate or
desirable, as conclusively evidenced by his or their execution thereof.
RESOLVED, That the Company enter into one or more indentures and
supplements thereto, each with a bank or trust company as Trustee (the
"Indentures"), providing for the issuance of the Underwritten Debt
Securities and that the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer and any Assistant Treasurer, and each of
them, be and hereby are authorized, in the name and on behalf of the
Company, (i) to select such trustee or trustees and (ii) to execute,
acknowledge and deliver the Indentures and supplements thereto, under the
seal of the Company, attested by the Secretary or any Assistant Secretary,
containing such terms and provisions as the officer or officers executing
such Indentures or supplements thereto may deem necessary, appropriate or
desirable, as conclusively evidenced by his or their execution thereof.
RESOLVED, that the execution by the Company of the Indenture dated as
of August 1, 1984 with The Chase Manhattan Bank (National Association) the
"Chase Indenture") and the Indenture dated as of February 1, 1985 with
Manufacturers Hanover Trust Company (the "Manufacturers Indenture"), and
the terms and provisions of each such Indenture and the appointment by the
Company of the Trustee under each such Indenture, are hereby approved,
ratified and confirmed.
<PAGE> 7
RESOLVED, that the Company enter into one or more indentures
supplemental to the Chase Indenture and/or the Manufacturers Indenture and that
the Chairman of the Board of Directors, the President, any Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the Vice
President-Finance, the Treasurer, and each of them, be and hereby are
authorized, in the name and on behalf of the Company, to (i) determine the
terms and provisions of any such supplemental indenture, (ii) select any bank
or trust company to act as trustee in addition to or in place of either The
Chase Manhattan Bank (National Association) under the Chase Indenture or
Manufacturers Hanover Trust Company, under the Manufacturers Indenture, as the
case may be, and (iii) execute, acknowledge and deliver any indenture
supplemental to either the Chase Indenture and/or the Manufacturer Indenture,
as the case may be, under the seal of the Company attested by the Secretary or
any Assistant Secretary, containing such terms and provisions as the officer or
officers executing any such supplemental indenture may deem necessary,
appropriate or desirable, as conclusively evidenced by his or their execution
thereof.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President or any Vice President and the Treasurer or the
Secretary, be and hereby are authorized, in the name and on behalf of the
Company and under its corporate seal (which may be a facsimile of such seal),
to execute (by manual or facsimile signature) Underwritten Debt Securities
(and, in addition, Underwritten Debt Securities to replace any of the
Underwritten Debt Securities which are lost, stolen, mutilated or destroyed and
Underwritten Debt Securities required for exchange, substitution or transfer,
all as provided in the respective Indentures, the Chase Indenture and/or the
Manufacturers Indenture or supplements thereto) in fully registered form in
substantially the forms of Underwritten Debt Securities to be set forth in the
respective Indentures, the Chase Indenture and/or the Manufacturers Indenture
or supplements thereto, with such changes therein and additions thereto as the
officer or officers executing the Underwritten Debt Securities may deem
necessary, appropriate or desirable, as conclusively evidenced by his or their
execution thereof.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, the Executive Vice President-Finance, the
Treasurer, any Assistant Treasurer, the Secretary and any Assistant
Secretary, and each of them, be and hereby are authorized to appoint one or
more paying agents, registrars, transfer agents, warrant agents and other
agents and functionaries, and to execute and deliver, in the name and on
behalf of the Company, any agreement, instrument or document relating to
any such appointment, for the purpose of implementing and giving effect to
the provisions of the Indentures, the Chase Indenture and/or the
Manufacturers Indenture, supplements thereto or the Underwritten Debt
Securities in the forms in which they shall be executed and delivered
pursuant to the foregoing resolutions; provided, however, that the Company
may at any time elect to act in any such capacity itself.
RESOLVED, That the Company enter into one or more underwriting
agreements, including pricing agreements pursuant thereto and pricing
<PAGE> 8
agreements pursuant to the Underwriting Agreement dated November 15, 1985
(the "November Agreement") and the Underwriting Agreement dated January 30,
1986 (the "January Agreement"), each between the Company and Goldman Sachs
& Co., with Goldman, Sachs & Co., or any firm, institution or partnership
acting on behalf of themselves or itself and the several underwriters (such
underwriting agreements and the November Agreement and the January
Agreement, are herein collectively called the "Underwriting Agreements"),
providing for the sale of the Underwritten Debt Securities and that, when
such Underwriting Agreements or pricing agreements pursuant thereto, or any
of them, have been completed to set forth the prices at and terms and
conditions upon which the Underwritten Debt Securities are to be sold and
the compensation to be received by the underwriters such matters first
having been presented to and approved by any two of the Chairman of the
Board of Directors, the President, the Executive Vice President-Finance and
the Treasurer, the Chairman of the Board of Directors, the President, any
Executive Vice President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer and any Assistant Treasurer, and each of them, be
and hereby are authorized to execute and deliver, in the name and on behalf
of the Company, the respective Underwriting Agreements and pricing
agreements pursuant thereto, with the inclusion of such underwriters and
containing such other terms and provisions as the officer or officers
executing the same may deem necessary, appropriate or desirable, as
conclusively evidenced by his or their execution thereof.
RESOLVED, that the execution by the Company of the November Agreement
and the January Agreement, and the terms and provisions of each, are hereby
approved, ratified and confirmed.
RESOLVED, That the Company enter into one or more delayed delivery
contracts ("Delayed Delivery Contracts") between the Company and
institutional or other investors providing for the sale of Underwritten
Debt Securities at any time, and that, when such Delayed Delivery Contracts
have been completed to set forth the respective prices, terms and
conditions on which the Underwritten Debt Securities are to be sold, the
Chairman of the Board of Directors, the President, any Executive Vice
President, the Vice President-Finance, the Vice President-Legal, the
Secretary, any Assistant Secretary, the Treasurer and any Assistant
Treasurer, and each of them, be and hereby are authorized to execute and
deliver in the name and on behalf of the Company one or more Delayed
Delivery Contracts, with such changes therein and additions thereto as the
officer or officers executing the same may deem necessary, appropriate or
desirable, as conclusively evidenced by his or their execution thereof.
RESOLVED, That the Company enter into one or more Purchase Agreements
or other Agreements (the "Purchase Agreements") with any firm, institution,
partnership or other person, including securities brokers and dealers,
relating to the sale and distribution of Underwritten Debt Securities and
that, when such Purchase Agreements, or any of them, have been completed to
set forth the terms and conditions upon which the Underwritten Debt
Securities are to be sold and the purchase prices to be paid by such
purchasers such matters first having been presented to and approved by any
two of the Chairman of the Board of Directors, the President, the Executive
<PAGE> 9
Vice President-Finance and the Treasurer, the Chairman of the Board of
Directors, the President, any Executive Vice President, any Vice President,
the Secretary, any Assistant Secretary, the Treasurer and any Assistant
Treasurer, and each of them, be and hereby are authorized to execute and
deliver, in the name and on behalf of the Company, the respective Purchase
Agreements, containing such other terms and provisions as the officer or
officers executing the same may deem necessary, appropriate or desirable,
as conclusively evidenced by his or their execution thereof.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, the Executive Vice President-Finance, the
Treasurer, any Assistant Treasurer and each of them, be and hereby are
authorized in the name and on behalf of the Company to purchase, or arrange
for the purchase of, Underwritten Debt Securities in connection with any
sinking fund under the provisions of any of the Indentures, the Chase
Indenture, the Manufacturers Indenture or supplements thereto.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized and empowered, in the name and on behalf
of the Company, to take any action (including, without limitation, the
payment of expenses), and to execute (by manual or facsimile signature) and
deliver any and all letters, documents or other writings, that such officer
or officers may deem necessary, appropriate or desirable in order to enable
the Company fully to exercise its rights and to perform its obligations
under the Indentures, the Chase Indenture, the Manufacturers Indenture or
supplements thereto, the Underwriting Agreements and pricing agreements
pursuant thereto, the Delayed Delivery Contracts and the Purchase
Agreements, or otherwise carry out the purposes and intents of each and all
of the foregoing resolutions.
Resolutions
Private Placement of Senior and Subordinated Debt
RESOLVED, That the Company issue and sell during any calendar year,
commencing with calendar year 1986, in one or more private offerings, in an
aggregate principal amount not to exceed U.S. $16,000,000,000, debt
securities, consisting of notes, debentures, warrants or other securities
or any combination thereof ("Private Securities"), denominated in U.S.
dollars or any foreign currency or currencies, or combination thereof, with
such maturity date or dates, in such relative principal amounts, at such
interest rates (either on a fixed or floating basis) or original issue
discounts, as applicable, and upon such additional terms and conditions
(including, without limitation, provisions for subordination) as may be
fixed by any two of the Chairman of the Board of Directors, the President,
the Executive Vice President-Finance and the Treasurer and that any two of
the Chairman of the Board of Directors, the President, the Executive Vice
President-Finance and the Treasurer be and hereby are authorized to deter-
mine the terms of the Private Securities, including, without limitation,
the maturity date or dates, the relative principal amounts, the relative
currency or currencies, the stated rate or rates of interest (either on a
fixed or floating basis) to be borne by, or original issue discounts
applicable to, the Private Securities, the terms and the price or prices
<PAGE> 10
for any prepayment or redemption of the Private Securities, pursuant to a
sinking fund or otherwise, any provisions for subordination of the Private
Securities, and the purchase prices to be paid by the purchasers of the
Private Securities; and to embody such determinations in the Private
Securities, one or more note agreements or loan agreements or in any other
agreement, instrument or document, as such officers shall determine.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Treasurer any
Assistant Treasurer, the Controller, the Secretary and any Assistant
Secretary, and each of them, be and hereby are authorized in the name and
on behalf of the Company to execute and deliver such Private Securities,
note agreements, loan agreements, or other agreements or instruments and
documents as may be approved pursuant to the next preceding resolution.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Treasurer any
Assistant Treasurer, the Controller, the Secretary and any Assistant
Secretary, and each of them, be and hereby are authorized in the name and
on behalf of the Company to take any action (including, without limitation,
the payment of expenses) and to execute and deliver any and all
certificates, instruments and documents (under the corporate seal of the
Company or otherwise) as such officer or officers may deem necessary,
appropriate or desirable in order to carry out the purposes and intents of
the foregoing resolutions.
Resolutions
Public Offering of Notes Sold Through Sales Agents
RESOLVED, That the Company (i) is authorized during any calendar year,
commencing with calendar year 1986, to register with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), debt securities, to be denominated when
issued in U.S. dollars or any foreign currency or currencies, consisting of
notes, debentures, warrants, guarantees or other securities, or any
combination thereof ("Securities"), in an aggregate principal amount not to
exceed U.S. $16,000,000,000 and (ii) is authorized to issue and sell
directly or through sales agents at any time (a) in one or more public
offerings, such Securities and (b) all of the Company's Floating Rate
Notes, Medium-Term Notes Due from 9 Months to 5 Years from Date of Issue
and Notes registered with the Commission pursuant to Registration Statement
Nos. 2-82744, 33-2888, 2-91104 and 2-94883, respectively, prior to the
adoption of these resolutions and unissued and unsold at the time of the
adoption of these resolutions (such Securities and such Floating Rate
Notes, such Medium-Term Notes Due from 9 Months to 5 Years from Date of
Issue and such Notes registered prior to the adoption of these resolutions
are hereinafter collectively called "Agency Notes") having various
maturities, with such maturity dates, in such relative principal amounts,
in such currencies, at such interest rates (either on a fixed or floating
basis) or original issue discounts, as applicable, and upon such additional
terms and conditions and with such other changes thereto as may be fixed
from time to time by any two of the Chairman of the Board of Directors, the
<PAGE> 11
President, the Executive Vice President-Finance and the Treasurer and that
any two of the Chairman of the Board of Directors, the President, the
Executive Vice President-Finance and the Treasurer be and hereby are
authorized to determine the terms of the Agency Notes, including, without
limitation, the respective maturity dates, the relative principal amounts,
the relative currency or currencies and the stated rates of interest
(either on a fixed or floating basis) to be borne by, or original issue
discounts applicable to, the Agency Notes.
RESOLVED, That the preparation of one or more Registration Statements
on Form S-3 or such other form as may be appropriate covering (a) such Agency
Notes or (b) such Agency Notes together with Underwritten Debt Securities (as
such term is defined in these resolutions under the caption "Public Offering of
Senior and Subordinated Debt"), including prospectuses, exhibits and other
documents, to be filed with the Commission for the purpose of registering the
offer and sale of (i) such Agency Notes or (ii) such Agency Notes together with
Underwritten Debt Securities under the Act, be and it hereby is in all respects
approved; that the directors and appropriate officers of the Company be and
hereby are authorized to sign and execute in their own behalf, or in the name
and on behalf of the Company, or both, as the case may be, any such
Registration Statement, including amendments to the prospectus and the addition
or amendment of exhibits and other documents relating thereto or required by
law or regulation in connection therewith, all in such form as such directors
and officers may deem necessary, appropriate or desirable, as conclusively
evidenced by their execution thereof; and that the appropriate officers of the
Company be and hereby are authorized to cause any such Registration Statement,
so executed, to be filed with the Commission; and, prior to the effective date
of any such Registration Statement the appropriate officers of the Company are
directed to use their best efforts to furnish each director and each officer
signing any such Registration Statement with a copy of such Registration
Statement; and if, prior to the effective date of any such Registration
Statement, material changes therein or material additions thereto are proposed
to be made, other than changes and additions of a type authorized under these
resolutions to be approved by an officer of the Company, the appropriate
officers of the Company are directed to use their best efforts to furnish each
director, and each officer signing any such Registration Statement, with a copy
of such Registration Statement and each amendment thereto as filed with the
Commission, or a description of such changes or additions, or a combination
thereof, in as complete and final form as practicable and in sufficient time to
permit each director and each such officer so desiring to object to any part of
any such Registration Statement before it becomes effective.
RESOLVED, That the directors and appropriate officers of the Company,
and each of them, be and hereby are authorized to sign and execute in their
own behalf, or in the name and on behalf of the Company, or both, as the
case may be, any and all amendments (including post-effective amendments)
to any Registration Statement (including Registration Statement Nos.
2-82744, 33-2888, 2-91104 and 2-94883) relating to any of the Agency Notes,
including amendments to the prospectus and the addition or amendment of
exhibits and other documents relating thereto or required by law or
<PAGE> 12
regulation in connection therewith, all in such form, with such changes, if
any, therein, as such directors and officers may deem necessary,
appropriate or desirable as conclusively evidenced by their execution
thereof; and that the appropriate officers of the Company, and each of
them, be and hereby are authorized to cause such amendment or amendments,
so executed, to be filed with the Commission; and if, prior to the
effective date of each such post-effective amendment, material changes or
material additions are proposed to be made in or to any such Registration
Statement or any amendment thereto in the form in which it most recently
became effective, other than changes and additions of a type authorized
under these resolutions to be approved by an officer of the Company, the
appropriate officers of the Company are directed to use their best efforts
to furnish each director, and each officer signing such post-effective
amendment, with a copy of such post-effective amendment or a description of
all material changes or additions therein, or a combination thereof, in as
complete and final form as practicable and in sufficient time to permit
each director and each such officer so desiring to object to any part of
such post-effective amendment before it becomes effective.
RESOLVED, That each officer and director who may be required to sign and
execute any such Registration Statement or any amendment thereto or document in
connection therewith (whether on behalf of the Company, or as an officer or
director of the Company, or otherwise), be and hereby is authorized to execute
a power of attorney appointing W. E. Odom, J. D. Bringard, H. D. Smith, W. O.
Staehlin, D. M. Brandi, R. P. Conrad, L. J. Ghilardi and S. P. Thomas, and
each of them, severally, his true and lawful attorney or attorneys to sign in
his name, place and stead in any such capacity such Registration Statement and
any and all amendments (including post-effective amendments) thereto and
documents in connection therewith, and to file the same with the Commission,
each of said attorneys to have power to act with or without the other, and to
have full power and authority to do and perform, in the name and on behalf of
each of said officers and directors who shall have executed such a power of
attorney, every act whatsoever which such attorneys, or any of them, may deem
necessary, appropriate or desirable to be done in connection therewith as fully
and to all intents and purposes as such officers or directors might or could do
in person.
RESOLVED, That the appropriate officers of the Company be and hereby
are authorized and empowered, in the name and on behalf of the Company, to
take any and all action which they may deem necessary or advisable in order
to effect the registration or qualification (or exemption therefrom) of the
Company's Agency Notes for issue, offer, sale or trade under the Blue Sky
or securities laws of any of the States of the United States of America, to
effect the registration or licensing (or exemption therefrom) of the
Company as a dealer or broker in securities under such laws, to effect the
registration or licensing of appropriate employees as salesmen or agents
under such laws, and in connection therewith to execute, acknowledge,
verify, deliver, file or cause to be published any application, reports,
consents to service of process, appointments of attorneys to receive
service of process and other papers and instruments which may be required
under such laws, and to take any and all further action which they, or any
<PAGE> 13
of them, may deem necessary or advisable in order to maintain any such
registration or qualification or license for as long as they, or any of
them, deem necessary or as required by law.
RESOLVED, That this corporation hereby appoints the Bank Commissioner
of the State of Maine, or his successor in office, to be its true and
lawful attorney, in and for said State, upon whom all lawful processes in
any action or proceeding against this corporation in said State based upon
or arising in connection with any sale of, attempt to sell, or advertising
of securities in said State or any violation of any act or statute
regulating the business of dealing in securities, may be served in like
manner and with the same effect as if this corporation existed therein, and
this corporation hereby stipulates and agrees that any lawful process
against it, as aforesaid, which is served on its said Attorney, shall be of
the same legal force and validity, as if served on this corporation.
This power of attorney shall be irrevocable, and the Secretary is
hereby authorized to execute in the name of the corporation a certificate
or authority or power of attorney to the said Bank Commissioner in
conformity with this resolution, and the laws of said State of Maine.
Ford Motor Credit Company hereby designates Goldman, Sachs & Co., a
licensed California broker-dealer, or any other licensed California broker-
dealer designated by the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer and any Assistant Treasurer, and each of
them, its attorney-in-fact for the purpose of executing and filing an
application on behalf of the Company, under applicable provisions of the
California Corporate Securities Law of 1968, for the registration or
qualification of part or all of the Agency Notes of the Company for
offering and sale in the State of California.
BE IT RESOLVED THAT RICHARD D. LATHAM, Securities Commissioner, State
Securities Board, of the State of Texas, and his successor in office, is
made, constituted and appointed the true and lawful attorney-in-fact for
and in the State of Texas for this corporation, upon whom all process of
law against this corporation in any action at law or legal proceeding
growing out of the Texas Securities Act may be served, subject to and in
accordance with all the provisions of the laws of the State of Texas and
all amendments thereto, and this corporation agrees that any and all lawful
process against it may be served upon its said attorney-in-fact, RICHARD D.
LATHAM, or his successor in office, shall be deemed valid personal service
upon this corporation and shall be of the same force and validity as if
served upon this corporation, and that all process served upon the said
Securities Commissioner shall be and have the same effect as if this
corporation were organized and created under the laws of the State of Texas
and had been lawfully served with process therein; and
<PAGE> 14
BE IT FURTHER RESOLVED that the corporation by and through its
President or any Vice President and Secretary or any Assistant Secretary
execute a Power of Attorney to the said RICHARD D. LATHAM, Securities
Commissioner of the State of Texas, and his successor in office,
incorporating the provisions of this resolution therein.
RESOLVED, That it is desirable and in the best interest of the Company
that its securities be qualified or registered for sale in various states;
that the Chairman of the Board of Directors, the President, any Vice
President or the Treasurer and the Secretary or an Assistant Secretary
hereby are authorized to determine the states in which appropriate action
shall be taken to qualify or register for sale all or such part of the
securities of the Company as said officers may deem advisable; that said
officers are hereby authorized to perform on behalf of the Company any and
all such acts as they may deem necessary or advisable in order to comply
with the applicable laws of any such states, and in connection therewith to
execute and file all requisite papers and documents, including, but not
limited to, applications, reports, surety bonds, irrevocable consents and
appointments of attorneys for service of process; and the execution by such
officers of any such paper or document or the doing by them of any act in
connection with the foregoing matters shall conclusively establish their
authority therefor from the Company and the approval and ratification by
the Company of the papers and documents so executed and the action so
taken.
RESOLVED, That any and all haec verba resolutions appointing, or
authorizing the proper officers of the Company to appoint, governmental
agencies or officials as agents for service of process which may be
required by the Blue Sky or securities laws of any State in which the
Company intends to offer to sell its securities be, and they hereby are,
adopted; that the proper officers of the Company be, and they hereby are,
authorized to certify that such resolutions were duly adopted at this
meeting; and that the Secretary of the Company shall cause a copy of each
resolution so certified to be attached to the minutes of this meeting.
RESOLVED, That the Company enter into (a) one or more indentures, each
with a bank or trust company as trustee (the "Indentures") and supplements
thereto, and (b) one or more supplemental indentures with Manufacturers
Hanover Trust Company, as Trustee (the "Supplemental Indentures")
supplementing the Indenture dated as of March 15, 1973, as supplemented,
the Indenture dated as of December 15, 1982, as supplemented, and/or the
Indenture dated as of May 1, 1984, as supplemented (the "Original
Indentures"), each between the Company and Manufacturers Hanover Trust
Company, as Trustee, providing for the issuance of the Agency Notes, and
that the Chairman of the Board of Directors, the President, any Executive
Vice President, any Vice President, the Secretary, any Assistant Secretary,
the Treasurer and any Assistant Treasurer, and each of them, be and hereby
are authorized, in the name and on behalf of the Company, (i) to select
such trustee or trustees and (ii) to execute, acknowledge and deliver the
Indentures and supplements thereto, and the Supplemental Indentures, under
the seal of the Company, attested by the Secretary or an Assistant
Secretary, containing such terms and provisions as the officer or officers
<PAGE> 15
executing the Indentures, supplements thereto or Supplemental Indentures
may deem necessary, appropriate or desirable, as conclusively evidenced by
his or their execution thereof.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President or any Vice President, and the Treasurer or
the Secretary be and hereby are authorized, in the name and on behalf of
the Company and under its corporate seal (which may be a facsimile of such
seal), to execute (by manual or facsimile signature) Agency Notes (and, in
addition, Agency Notes to replace any of the Agency Notes which are lost,
stolen, mutilated or destroyed and Agency Notes required for exchange,
substitution or transfer, all as provided in the Indentures, supplements
thereto, the Original Indentures and the Supplemental Indentures) in fully
registered or bearer form in substantially the form of Agency Note as set
forth in the Indentures, supplements thereto, the Original Indentures or
any Supplemental Indenture, as the case may be, with such changes therein
and additions thereto as the officer or officers executing the Agency Notes
may deem necessary, appropriate or desirable, as conclusively evidenced by
his or their execution thereof; provided, however, that any Agency Note
which bears the facsimile signature of any person who at any time prior to
or on or after the date hereof held any such office shall be valid and
binding on the Company with the same force and effect as if such person
held such office on the date hereof and on the date of delivery of such
Agency Note.
RESOLVED, That (a), with respect to Agency Notes issued pursuant to the
Original Indentures and the Supplemental Indentures, Manufacturers Hanover
Trust Company be and hereby is appointed Issuing Agent for the purpose of
issuing, authenticating and delivering such Agency Notes, and cancelling
and destroying such Agency Notes, in accordance with the provisions of the
Original Indentures and the Supplemental Indentures in the form in which
they shall be executed and delivered and (b), with respect to Agency Notes
issued pursuant to any Indenture or supplement thereto, the bank or trust
company designated by the appropriate officers of the Company as trustee
under any such Indenture or supplement thereto be, and hereby is, appointed
Issuing Agent for the purpose of issuing, authenticating and delivering
such Agency Notes, and cancelling and destroying such Agency Notes, in
accordance with the provisions of any Indenture or supplements thereto in
the form in which they shall be executed and delivered; provided, however,
that the Company may at any time elect to act as its own Issuing Agent or
appoint additional or substitute Issuing Agents.
RESOLVED, That (a), with respect to Agency Notes issued pursuant to the
Original Indentures and the Supplemental Indentures, Manufacturers Hanover
Trust Company be and hereby is appointed Paying Agent for the purpose of
payment of principal and interest with respect to such Agency Notes in
accordance with the provisions of the Original Indentures and the Supplemental
Indentures and such Agency Notes in the forms in which they shall be executed
and delivered pursuant to the foregoing resolutions and (b), with respect to
Agency Notes issued pursuant to any Indenture or supplements thereto, the bank
or trust company designated by the appropriate officers of the Company as
trustee under any such Indenture or
<PAGE> 16
supplement thereto be, and hereby is, appointed Paying Agent for the
purpose of payment of principal and interest with respect to such Agency
Notes in accordance with the provisions of any such Indenture and
supplements thereto and such Agency Notes in the forms in which they shall
be executed and delivered pursuant to the foregoing resolutions; provided,
however, that the Company may at any time elect to act as its own Paying
Agent or appoint additional or substitute Paying Agents.
RESOLVED, That (a), with respect to Agency Notes issued pursuant to the
Original Indentures and Supplemental Indentures, Manufacturers Hanover Trust
Company be and hereby is appointed Registrar for the purpose of registration,
exchange or registration of transfer of such Agency Notes, in accordance with
the provisions of the Original Indentures and the Supplemental Indentures in
the form in which they shall be executed and delivered and, (b) with respect to
registered Agency Notes issued pursuant to any Indenture or supplements
thereto, the bank or trust company designated by the appropriate officers of
the Company as trustee under any such Indenture or supplements thereto be, and
hereby is, appointed Registrar for the purpose of registration, exchange or
registration of transfer of such Agency Notes, in accordance with the
provisions of any Indenture or supplements thereto in the form in which they
shall be executed and delivered; provided, however, that the Company may at any
time elect to act as its own Registrar or appoint additional or substitute
Registrars.
RESOLVED, That the Company enter into one or more Sales Agency
Agreements, Purchase Agreements and other Agreements relating to the sale and
distribution of the Agency Notes with Goldman, Sachs & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), and any other persons,
including securities brokers and dealers ("Other Persons"), and each of them,
providing for the sale of the Agency Notes by Goldman, Sachs & Co., Merrill
Lynch and any Other Person, and each of them, on a "best efforts" basis, and/or
for the purchase from time to time by Goldman, Sachs & Co., Merrill Lynch and
any Other Person, and each of them, of Agency Notes, as principal, and that the
Chairman of the Board of Directors, the President, any Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer and any Assistant Treasurer, and each of them, be and hereby are
authorized to execute and deliver, in the name and on behalf of the Company,
such Sales Agency Agreements, Purchase Agreements and other Agreements with
Goldman, Sachs & Co., Merrill Lynch and any Other Person, and each of them,
containing such other terms and provisions as the officer or officers executing
the same may deem necessary, appropriate or desirable, as conclusively
evidenced by his or their execution thereof.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized and empowered, in the name and on behalf of
the Company, to take any action (including, without limitation, the appointment
of Issuing Agents, Paying Agents and Registrars and the payment of expenses),
and to execute (by manual or facsimile signature) and deliver any and all
agreements, letters, documents or other writings, that such officer or officers
may deem necessary, appropriate or desirable in order
<PAGE> 17
to enable the Company fully to exercise its rights and to perform its
obligations under the Indentures, supplements thereto, the Original Indentures
and the Supplemental Indentures and the Sales Agency Agreements and the
Purchase Agreements and any other Agreement, to effectuate the issuance and
sale of the Agency Notes and to carry out the purposes and intents of each and
all of the foregoing resolutions.
Resolutions
Public Offering and Private Placement of
Securities Denominated in U.S. Dollars and
Foreign Currencies in Foreign Markets
RESOLVED, That the Company is authorized during any calendar year,
commencing with calendar year 1986, to issue and sell at any time outside the
United States, in one or more public or private offerings through underwriters,
sales agents or otherwise, debt securities denominated in U.S. dollars or any
foreign currency, consisting of warrants, notes, debentures or any other
securities, or any combination thereof ("Foreign Securities") in an aggregate
principal amount not to exceed U.S. $16,000,000,000, in such relative principal
amounts, with such maturity date or dates, at such interest rate or rates and
upon such additional terms and conditions as may be fixed by any two of the
Chairman of the Board of Directors, the President, the Executive Vice
President-Finance, the Vice President-Treasurer and the Treasurer and that any
two of the Chairman of the Board of Directors, the President, the Executive
Vice President-Finance, the Vice President-Treasurer and the Treasurer be and
hereby are authorized to determine the terms of the Foreign Securities,
including, without limitation, the relative principal amounts, the relative
currencies, the maturity date or dates, the stated rate or rates of interest
(either on a fixed or floating basis) to be borne by, or the original issue
discounts applicable to, the Foreign Securities, the price or prices for any
prepayment or redemption of the Foreign Securities, pursuant to a sinking fund
or otherwise, and the purchase prices to be paid by the underwriters or other
purchasers of the Foreign Securities; and to embody such determinations in the
Foreign Securities, one or more Note Agreements, Indentures, Fiscal Agency
Agreements, Paying Agency Agreements, Warrant Agreements or Underwriting
Agreements, Sales Agency Agreements or in any other agreement, instrument or
document, as any such officer shall determine.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary and any Assistant Secretary, and each of them, be and
hereby are authorized, in the name and on behalf of the Company (i) to select
all Fiscal Agents, Paying Agents and Warrant Agents and/or other agents and
(ii) to execute and deliver (and to take such action as any officer so
executing deems necessary, appropriate or desirable in connection with) such
Foreign Securities, Note Agreements, Indentures, Fiscal Agency Agreements,
Paying Agency Agreements, Warrant Agreements or Underwriting Agreements or
other agreements or instruments and documents authorized pursuant to the
preceding resolutions and that any such Foreign Securities, Note Agreements,
Indentures, Fiscal Agency
<PAGE> 18
Agreements, Paying Agency Agreements, Warrant Agreements Underwriting
Agreements, Sales Agency Agreements and other agreements and documents so
executed and delivered are hereby approved.
RESOLVED, That the Trustees, Fiscal Agents, Paying Agents, Warrant
Agents, Underwriters and other parties to all other agreements executed and
delivered pursuant to the next preceding resolution are hereby approved.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized in the name and on behalf of the Company to
take such action as they or any of them deem necessary, appropriate or
desirable to make application for the listing of Foreign Securities on the
Luxembourg Stock Exchange or any other stock exchange, and that the Chairman of
the Board of Directors, the President, any Executive Vice President, any Vice
President, the Treasurer, the Secretary, any Assistant Treasurer and any
Assistant Secretary, and each of them, be and hereby are designated
representatives of the Company to appear before the Luxembourg Stock Exchange
or any other stock exchange and other offices in connection with such listing
and to take or cause to be taken any and all steps as they or any of them deem
necessary, appropriate or desirable to effect such listing and to delegate to
any person any or all of the powers hereby authorized to be exercised by such
officer in connection with the application for such listing.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary and any Assistant Secretary of the Company, and each
of them, be and hereby are authorized in the name and on behalf of the Company
to take such action, and to execute and deliver any and all agreements,
instruments or documents, as they or any of them deem necessary, appropriate or
desirable to provide for the purchase or availability of foreign currencies in
amounts sufficient to fulfill the obligations of the Company for payment of
principal and interest with respect to the Foreign Securities.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary and any Assistant Secretary of the Company, and each
of them, be and hereby are authorized in the name and on behalf of the Company
to take any action (including, without limitation, the payment of expenses) and
to execute and deliver any and all certificates, instruments and documents
(under the corporate seal of the Company or otherwise) as such officer or
officers may deem necessary, appropriate or desirable in order to carry out the
purposes and intents of the foregoing resolutions.
<PAGE> 19
Resolutions
Additional Provisions
Overall Limitation on Indebtedness
RESOLVED, That, notwithstanding the provisions of the preceding
resolutions relating to Underwritten Debt Securities, Private Securities,
Agency Notes (other than Agency Notes (i) registered with the Securities and
Exchange Commission (the "Commission") prior to the adoption of these
resolutions and (ii), with respect to any calendar year, registered with the
Commission during any preceding calendar year) and Foreign Securities (such
securities, which are defined in the preceding resolutions under the captions
"Public Offering of Senior and Subordinated Debt", "Private Placement of Senior
and Subordinated Debt", "Public Offering of Notes Sold Through Sales Agents"
and "Public Offering and Private Placement of Securities Denominated in U.S.
Dollars and Foreign Currencies in Foreign Markets", respectively, are, for the
purpose of this resolution, hereinafter collectively called the "Debt
Securities"): (a) (i) the aggregate principal amount of Debt Securities issued
and sold pursuant to such resolutions during any calendar year, commencing with
calendar year 1986, shall not exceed the equivalent of U. S.16,000,000,000;
provided, however, that the aggregate amount of each offering of Agency Notes
shall be deemed to have been issued and sold at the time the prospectus
relating to such offering shall have been first filed with the Commission
pursuant to Rule 424 under the Securities Act of 1933, as amended; and,
provided, further, that, notwithstanding such limitation on the aggregate
principal amount of Debt Securities which may be issued and sold during any
calendar year, all Agency Notes authorized for issuance and sale under the
preceding resolutions captioned "Public Offering of Notes Sold Through Sales
Agents" and registered with the Commission on or after the adoption of these
resolutions hereby are authorized for issuance and sale by the Company at any
time; (ii) with respect to any Debt Securities for issuance and sale at a
discount from the face amount thereof, the aggregate principal amount thereof
for purposes of these resolutions shall be deemed to be the aggregate principal
amount at which such Debt Securities are initially offered to the public and
not the aggregate principal amount thereof at stated maturity; and (iii) with
respect to any issuance of warrants, whether issued with or without other Debt
Securities ("Related Debt Securities"), entitling the purchasers thereof to
purchase Debt Securities in addition to any Related Debt Securities, (A) the
aggregate principal amount of Debt Securities which shall be deemed to have
been issued and sold for purposes of this resolution shall be the sum of (1)
the aggregate principal amount of Debt Securities which are issuable upon
exercise of all such warrants and (2) if Related Debt Securities are issued
with such warrants, the aggregate principal amount of such Related Debt
Securities and (B) the Debt Securities issuable upon exercise of all such
warrants shall, for purposes of this resolution, be deemed to have been issued
and sold at the time of the issuance and sale of such warrants; (b) the
aggregate principal amount of Debt Securities which may be registered with the
Commission pursuant to such resolutions during the Authorized Period shall not
exceed U.S. $16,000,000,000; and (c) the authority to issue and sell Debt
Securities granted pursuant to the foregoing resolutions shall be
<PAGE> 20
in addition to, and not in limitation of, authority previously delegated to
officers of the Company at the meeting of the Board of Directors of the Company
held on April 6, 1978.
Annual Report
RESOLVED, That, each year, the Chairman of the Board of Directors, the
President or the Treasurer shall submit, or cause to be submitted, to the Board
of Directors at its annual meeting, a report showing borrowings effected by the
Company during the previous year, borrowings of the Company outstanding as of
the end of the previous year and term-debt placements contemplated by the
Company for the current year.
<PAGE> 21
POWER OF ATTORNEY WITH RESPECT TO REGISTRATION
STATEMENTS OF
FORD MOTOR CREDIT COMPANY
COVERING NOTES, DEBENTURES, SUBORDINATED NOTES, SUBORDINATED
DEBENTURES, NOTES SOLD THROUGH SALES AGENTS,
NOTES PURSUANT TO THE FORD MONEY MARKET ACCOUNT PROGRAM,
NOTES PURSUANT TO THE FORD MONEY MARKET ACCOUNT PLAN AND
SECURITIES BACKED BY COMPANY RECEIVABLES
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer or
director of FORD MOTOR CREDIT COMPANY, does hereby constitute and appoint W. E.
Odom, Edsel B. Ford II, K. J. Coates, J. D. Bringard, H. D. Smith, W. O.
Staehlin, R. P. Conrad and S. P. Thomas, and each of them, severally, his true
and lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute in his name (whether on behalf of FORD MOTOR
CREDIT COMPANY, or as an officer or director of FORD MOTOR CREDIT COMPANY, or
by attesting the seal of FORD MOTOR CREDIT COMPANY or otherwise) any and all
instruments which said attorney and agent may deem necessary or advisable in
order to enable FORD MOTOR CREDIT COMPANY to comply with the Securities Act of
1933, as amended, and any requirements of the Securities and Exchange
Commission in respect thereof, in connection with a Registration Statement or
Registration Statements and any and all amendments (including post-effective
amendments) to the Registration Statement or Registration Statements relating
to the issuance and sale of any of the above-captioned securities of FORD MOTOR
CREDIT COMPANY authorized at a meeting of the Board of Directors of FORD MOTOR
CREDIT COMPANY held on February 26, 1986, March 2, 1988, March 10, 1993 and
September 29, 1993 including specifically, but without limitation thereto,
power and authority to sign his name (whether on behalf of FORD MOTOR CREDIT
COMPANY or as an officer or director of FORD MOTOR CREDIT COMPANY, or by
attesting the seal of FORD MOTOR CREDIT COMPANY or otherwise) to such
Registration Statement or Registration Statements and to such amendments
(including post-effective amendments) to the Registration Statement or
Registration Statements to be filed with the Securities and Exchange
Commission, or any of the exhibits, financial statements or schedules or the
Prospectuses, filed therewith, and to file the same with the Securities and
Exchange Commission; and each of the undersigned does hereby ratify and
confirm all that said attorneys and agents, and each of them shall do or cause
to be done by virtue hereof. Any one of said attorneys and agents shall have,
and may exercise, all the powers hereby conferred.
<PAGE> 22
IN WITNESS WHEREOF, the undersigned has signed his name hereto
as of the 26th day of August, 1994.
/s/ John G. Clissold /s/ William E. Odom
____________________________ _________________________
(J. G. Clissold) (William E. Odom)
/s/ K.J. Coates /s/ Robert D. Warner
____________________________ __________________________
(Kenneth J. Coates) (Robert D. Warner)
/s/ Edsel B. Ford II /s/ Kenneth Whipple
____________________________ __________________________
(Edsel B. Ford II) (Kenneth Whipple)
/s/ Michael I. Auld /s/ Terrence F. Marrs
_____________________________ __________________________
(Michael I. Auld) (Terrence F. Marrs)
/s/ David N. McCammon
____________________________
(David N. McCammon)
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
175 WEST BROADWAY, SALEM, NEW JERSEY 08079
(Address of Principal Executive Offices) (Zip Code)
FORD MOTOR CREDIT COMPANY
(Name of Obligor)
DELAWARE 38-1612444
(State of Incorporation) (I.R.S. Employer
Identification No.)
THE AMERICAN ROAD, DEARBORN, MI 48121
(Address of Principal Executive Offices) (Zip Code)
DEBT SECURITIES
(Title of Indenture Securities)
<PAGE> 2
1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH IT
IS SUBJECT:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Board of Governors of the Federal Reserve System
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C. 20429
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
3. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. Copy of Articles of Association of the trustee as now in effect.
Incorporated herein by reference to Exhibit 1 filed with Form T-1,
Registration No. 22-73340.
2. Copy of Certificate of the Comptroller of the Currency dated January 11,
1994, evidencing the authority of the trustee to transact business.
Incorporated herein by reference to Exhibit 2 filed with Form T-1,
Registration No. 22-73340.
3. Copy of the authorization of the trustee to exercise corporate trust
powers has heretofore been filed with the Securities and Exchange
Commission as Exhibit 3 filed with Form T-1, Registration Number
22-73340, has not been amended since filing and is incorporated herein
by reference.
4. Copy of existing by-laws of the trustee. Incorporated herein by
reference to Exhibit 4 filed with Form T-1, Registration No. 22-73340.
2
<PAGE> 3
5. Copy of each indenture if the obligor is in default.
Not applicable.
6. Consent of the trustee required by Section 321(b) of the Act.
Incorporated herein by reference to Exhibit 6 filed with Form T-1,
Registration No. 22-73340.
7. Copy of report of condition of the trustee at the close of business on
June 30, 1994, published pursuant to the requirements of its supervising
authority.
NOTE
The trustee disclaims responsibility for the accuracy or completeness
of information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtainable by it through reasonable investigation
and as to such information it has obtained from the obligor and has had to rely
or will obtain from the principal underwriters and will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 (as
amended), the trustee, First Fidelity Bank, National Association, a national
banking association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Newark
and State of New Jersey on the 26th day of August, 1994.
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
By: /s/ DONALD J. QUILES
Donald J. Quiles
Assistant Vice President
(Form T1)
(Ford) (8)
3
<PAGE> 4
EXHIBIT 7
This form is for use by National Banks only. It should be used for
publication purposes only, and should not be returned to the FDIC.
Comptroller of the Currency
Administrator of National Banks
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association of Salem in the state of New Jersey, at the close of
business on June 30, 1994, published in response to call made by Comptroller of
the Currency, under title 12, United States Code, Section 161. Charter Number
33869 Comptroller of the Currency Northeastern District.
STATEMENT OF RESOURCES AND LIABILITIES
<TABLE>
<CAPTION>
ASSETS Thousand of Dollars
-------------------
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin......... 1,515,147
Interest-bearing balances.................................. 439,530
Held-to-maturity securities................................ 3,418,048
Available-for-sale securities.............................. 2,832,519
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its //////////
Edge and Agreement subsidiaries, and in IBFs: //////////
Federal funds sold..................................... 558,540
Securities purchased under agreements to resell........ 276,261
Loans and lease financing receivables:
Loan and leases, net of unearned income...... 18,542,773
LESS: Allowance for loan and lease losses....... 515,420
LESS: Allocated transfer risk reserve................. 0
Loans and leases, net of unearned income, allowance, and
reserve................................................. 18,027,353
Assets held in trading accounts............................... 161,733
Premises and fixed assets (including capitalized leases)...... 337,978
Other real estate owned....................................... 135,958
Investments in unconsolidated subsidiaries and associated
companies..................................................... 11,646
Customer's liability to this bank on acceptances outstanding... 194,720
Intangible assets............................................. 291,235
Other assets.................................................. 482,637
Total assets.................................................. 28,683,305
</TABLE>
1
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
Deposits:
<S> <C>
In domestic offices........................................... 22,688,126
Noninterest-bearing.......................... 4,564,800
Interest-bearing............................ 18,123,326
In foreign offices, Edge and Agreement subsidiaries,
and IBFs...................................................... 713,517
Noninterest-bearing............................ 15,866
Interest-bearing.............................. 697,651
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and IBFs:
Federal funds purchased....................................... 861,993
Securities sold under agreements to repurchase................ 1,091,313
Demand notes issued to the U.S. Treasury........................ 0
Trading liabilities............................................. 0
Other borrowed money:........................................... /////////
With original maturity of one year or less.................... 390
With original maturity of more than one year.................. 740
Mortgage indebtedness and obligations under capitalized leases.. 7,009
Bank's liability on acceptances executed and outstanding........ 197,334
Subordinated notes and debentures............................... 175,000
Other liabilities............................................... 422,642
Total liabilities............................................... 26,158,064
Limited-life preferred stock and related surplus................ 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus................... 0
Common Stock.................................................... 430,000
Surplus......................................................... 985,034
Undivided profits and capital reserves.......................... 1,138,808
Net unrealized holding gains (losses) on available-for-sale /////////
securities..................................................... (28,601)
Cumulative foreign currency translation adjustments............. 0
Total equity capital............................................ 2,525,241
Total liabilities, limited-life preferred stock and equity //////////
capital....................................................... 28,683,305
</TABLE>
<TABLE>
<S> <C>
We, the undersigned directors, attest to the correctness of I, Anthony R. Burriesci
this statement of resources and liabilities. We declare that it Name
has been examined by us, and to the best of our knowledge
and belief has been prepared in conformance with the Executive V.P. & Controller
instructions and is true and correct. Title
of the above-named bank do hereby declare that this
Report of Condition is true and correct to the best
of my knowledge and belief.
__________________________________________________ }
__________________________________________________ } Directors
__________________________________________________ }
____________________________________________________
Signature
____________________________________________________
Date
</TABLE>
2
