Exhibit
4
FORD
MOTOR CREDIT COMPANY
AND
JPMORGAN
CHASE BANK, N.A., TRUSTEE
(Successor
Trustee to Manufacturers Hanover Trust Company)
______________
FORM
OF
EIGHTH
SUPPLEMENTAL INDENTURE
Dated
as
of June 5, 2006
Supplemental
to Indenture
Dated
as
of February 1, 1985 as Supplemented by
a
First
Supplemental Indenture dated as of April 1, 1986,
a
Second
Supplemental Indenture dated as of September 1, 1986,
a
Third
Supplemental Indenture dated as of March 15, 1987,
a
Fourth
Supplemental Indenture dated as of April 15, 1988,
a
Fifth
Supplemental Indenture dated as of September 1, 1990,
a
Sixth
Supplemental Indenture dated as of June 1, 1998,
and
a
Seventh Supplemental Indenture dated as of January 15, 2002
______________
Unsecured
Debt Securities
EIGHTH
SUPPLEMENTAL INDENTURE, dated as of the 5
th
day of
June, 2006 (hereinafter called the “Eighth Supplemental Indenture”), 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
JPMORGAN CHASE BANK, N.A. (successor by merger to Manufacturers Hanover Trust
Company), a corporation duly organized and existing under the laws of the State
of New York (hereinafter sometimes called the “Trustee”), as Trustee under the
indenture of the Company, dated as of February 1, 1985, as supplemented by
a
First Supplemental Indenture dated as of April 1, 1986, a Second Supplemental
Indenture dated as of September 1, 1986, a Third Supplemental Indenture dated
as
of March 15, 1987, a Fourth Supplemental Indenture dated as of April 15, 1988,
a
Fifth Supplemental Indenture dated as of September 1, 1990, a Sixth Supplemental
Indenture dated as of June 1, 1998 and a Seventh Supplemental Indenture dated
as
of January 15, 2002 (such indenture as so supplemented is hereinafter called
the
“Indenture”).
RECITALS
OF THE COMPANY
WHEREAS,
the Indenture provides for the issuance from time to time of unsecured and
unsubordinated debentures, notes or other evidences of indebtedness of the
Company in one or more series in an unlimited aggregate principal
amount;
WHEREAS,
Section 9.01 of the Indenture provides, among other things, that the Company
may
amend the Indenture to (1) establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 3.01 of the Indenture, (2) add to
the covenants of the Company or add any additional Events of Default for the
benefit of the holders of any series of Securities, and (3) to cure any
ambiguity or make such other provisions with respect to matters or questions
arising under the Indenture, provided that such action shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect;
WHEREAS,
as contemplated by 9.01 of the Indenture, the Company desires to amend and
supplement the terms of the Indenture to allow for the issuance of Securities
in
reliance on Rule 144A and Regulations S, which will not be registered at the
time of issuance under the Securities Act of 1933, as amended (the “Securities
Act”), and for their subsequent exchange for Exchange Securities, to make
certain other related changes to the Indenture that will not adversely effect
the interests of the Holders of Securities of any series in any material
respect; and
WHEREAS,
the Company represents that all acts and things necessary to constitute these
presents a valid indenture and agreement according to its terms, have been
done
and performed, and the execution of this Eighth Supplemental Indenture has
in
all respects been duly authorized, and the Company, in the exercise of legal
right and power in it vested, is executing this Eighth Supplemental
Indenture;
NOW,
THEREFORE, in consideration of the premises and the sum of One Dollar to it
duly
paid by the Trustee at the execution of these presents, the receipt whereof
is
hereby acknowledged, the Company covenants and agrees with the Trustee, for
the
equal and
proportionate
benefit of the respective Holders from time to time, on and after the date
hereof, of the Securities (and of the coupons, if any, appertaining thereto)
or
of a series thereof, as follows:
Section
1.
Definitions
(a)
Capitalized
terms used herein without definition shall have the meanings assigned to them
in
the Indenture.
(b)
For
all
purposes of this Eighth Supplemental Indenture, except as otherwise herein
expressly provided or unless the context otherwise requires: (i) the terms
and expressions used herein shall have the same meanings as corresponding terms
and expressions used in the Indenture; and (ii) the words “herein,”
“hereof” and “hereby” and other words of similar import used in this Eighth
Supplemental Indenture refer to this Eighth Supplemental Indenture as a whole
and not to any particular section hereof.
Section
2.
Amendments
to Certain Provisions
Certain
provisions of the Indenture are amended as follows:
(a)
Amendments
to Article One
The
following definitions shall be added to Section 1.01 and replace any existing
definitions (as applicable) in the Indenture prior to the date hereof, each
in
appropriate alphabetical order:
“
144A
Global Security
”
means
a
Global Security bearing the Private Placement Legend and deposited with or
on
behalf of, and registered in the name of, the Depositary or its nominee, that
shall be issued in a denomination equal to the outstanding principal amount
of
the Securities of a particular series sold in reliance on Rule 144A.
“
Additional
Interest
”
means
any additional interest due and payable on any series of Securities pursuant
to
the applicable Registration Rights Agreement. Unless the context otherwise
requires, the term “
interest,
”
when
used in this Indenture with respect to any series of Securities as to which
Additional Interest is due and payable, shall mean the interest payable in
accordance with the terms of such Security plus such Additional
Interest.
“
Applicable
Procedures
”
means,
with respect to any transfer or exchange of or for beneficial interests in
any
Global Security, the rules and regulations of the Depositary that apply to
such
transfer or exchange.
“
Broker-Dealer
”
has
the
meaning set forth in the applicable Registration Rights Agreement.
“
Clearstream
”
means
Clearstream Banking S.A. and any successor thereto.
“
Dealer
Manager
”
has
the
meaning set forth in any Registration Rights Agreement, if
applicable.
“
Depositary
”
means,
with respect to any series of Securities issuable in global form, the person
specified as the Depositary with respect to such series pursuant to Section
3.01, and any and all successors appointed as Depositary under the Indenture
and
having become such under the Indenture.
“
Euroclear
”
means
Euroclear Bank S.A./N.V., as operator of the Euroclear system, and any successor
thereto.
“
Exchange
Securities
”
means
any Securities containing terms identical to Securities of a particular series
bearing a Private Placement Legend (except that such Exchange Securities shall
be registered under the Securities Act and shall not include a Private Placement
Legend) that are issued and exchanged for any such Securities pursuant to the
applicable Registration Rights Agreement in an Exchange Offer in accordance
with
Section 2.04(c).
“
Exchange
Offer
”
has
the
meaning set forth in the applicable Registration Rights Agreement.
“
Exchange
Offer Registration Statement
”
has
the
meaning set forth in the applicable Registration Rights Agreement.
“
Eighth
Supplemental Indenture
”
means
the Eighth Supplemental Indenture, dated June 5, 2006, to the
Indenture.
“
Global
Securities
”
means,
individually and collectively, any Securities issued in global form issued
in
accordance with Section 2.01.
“
Initial
Purchaser
”
has
the
meaning set forth in the applicable Registration Rights Agreement, if
applicable.
“
Legended
Regulation S Global Security
”
means
a
Global Security bearing the Private Placement Legend and deposited with or
on
behalf of and registered in the name of the Depositary or its nominee, issued
in
a denomination equal to the outstanding principal amount of any series of
Securities initially sold in reliance on Rule 903 of Regulation S.
“
Letter
of Transmittal
”
means
the letter of transmittal to be prepared by the Company and sent to all Holders
of any series of Securities for use by such Holders in connection with an
Exchange Offer.
“
Private
Placement Legend
”
means
the legend set forth in Section 2.04(d) to be placed on all Securities issued
under this Indenture without registration under the Securities Act, except
where
otherwise permitted by the provisions of this Indenture.
“
QIB
”
means
a
“qualified institutional buyer” as defined in Rule 144A.
“
Registration
Rights Agreement
”
means
any registration rights agreement between the Company and the other parties
thereto pursuant to which the Company agrees to register one or more specified
series of Securities under the Securities Act.
“
Regulation
S
”
means
Regulation S promulgated under the Securities Act.
“
Regulation
S Global Security
”
means
a
Global Security deposited with or on behalf of, and registered in the name
of,
the Depositary or its nominee, that shall be issued in a denomination equal
to
the outstanding principal amount of the Securities of a particular series sold
in reliance on Regulation S.
“
Restricted
Definitive Security
”
means
a
Definitive Security bearing the Private Placement Legend.
“
Restricted
Global Security
”
means
a
Global Security bearing the Private Placement Legend.
“
Restricted
Period
”
means
the 40-day distribution compliance period as defined in Regulation
S.
“
Rule
144
”
means
Rule 144 promulgated under the Securities Act.
“
Rule
144A
”
means
Rule 144A promulgated under the Securities Act.
“
Rule
903
”
means
Rule 903 promulgated under the Securities Act.
“
Rule
904
”
means
Rule 904 promulgated under the Securities Act.
“
Shelf
Registration Statement
”
means
the Shelf Registration Statement as defined in the applicable Registration
Rights Agreement.
“
Unlegended
Regulation S Global Security
”
means
a
Global Security deposited with or on behalf of and registered in the name of
the
Depositary or its nominee and issued upon expiration of the Restricted
Period.
“
Unrestricted
Definitive Security
”
means
one or more Definitive Securities that do not bear and are not required to
bear
the Private Placement Legend.
“
Unrestricted
Global Security
”
means
a
Global Security that is deposited with or on behalf of and registered in the
name of the Depositary, representing a series of Securities, and that does
not
bear the Private Placement Legend.
“
U.S.
Person
”
means
a
U.S. person as defined in Rule 902(o) under the Securities Act.
(b)
Amendments
to Article Two
(i)
The
following paragraphs will be added
at
the
end of Section 2.01:
“Any
Securities of a particular series offered and sold in reliance on Regulation
S
shall be issued initially in the form of a Legended Regulation S Global
Security, which shall be deposited on behalf of the purchasers of the Securities
represented thereby with JPMorgan Chase Bank, N.A., as custodian for The
Depository Trust Company (“
DTC
”),
and
registered
in the name of the Depositary or the nominee of the Depositary, duly executed
by
the Company and authenticated by the Trustee as hereinafter provided. Following
the termination of the Restricted Period, beneficial interests in a Legended
Regulation S Global Security may be exchanged for beneficial interests in an
Unlegended Regulation S Global Security pursuant to Section 2.04 and the
Applicable Procedures. Simultaneously with the authentication of an Unlegended
Regulation S Global Security, the Trustee shall cancel the relevant Legended
Regulation S Global Security. During the Restricted Period, transfers of
beneficial interests in a Legended Regulation S Global Security shall be made
only to or for the accounts of designated agents holding on behalf of Euroclear
or Clearstream. The aggregate principal amount of any Regulation S Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee, as the case
may
be, in connection with transfers of interest as hereinafter
provided.
The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable
to transfers of beneficial interests in the Regulation S Global Securities
that
are held by Participants through Euroclear or Clearstream.
Any
Securities of a particular series issued under this Indenture and any Exchange
Securities subsequently issued for Securities of such series shall be treated
as
a single series for all purposes under this Indenture.”
(ii)
Section
2.04
shall be added as follows:
“SECTION
2.04.
Special
Transfer Provisions
.
(a)
Transfer
and Exchange of Beneficial Interests in Restricted Global
Securities
.
The
transfer and exchange of beneficial interests in the Global Securities shall
be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Securities shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers
of beneficial interests in the Global Securities also shall require compliance
with either subparagraph (i) or (ii) below, as applicable, as well as one or
more of the other following subparagraphs, as applicable:
(i)
Transfer
of Beneficial Interests in the Same Global Security
.
Beneficial interests in any Restricted Global Security may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in the
same Restricted Global Security in accordance with the transfer restrictions
set
forth in the Private Placement Legend;
provided
,
however
,
that
prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Legended Regulation S Global Security may not be made to a
U.S.
Person or for the account or benefit of a U.S. Person (other than any Initial
Purchaser). Beneficial interests in any Unrestricted Global Security may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.04(a)(i).
(ii)
All
Other Transfers and Exchanges of Beneficial Interests in Global
Securities
.
In
connection with all transfers and exchanges of beneficial interests that are
not
subject to Section 2.04(a)(i) above, the transferor of such beneficial interest
must deliver to the Registrar (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Security in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given
in
accordance with the Applicable Procedures containing information regarding
the
Participant account to be credited with such increase. Upon consummation of
an
Exchange Offer by the Company in accordance with Section 2.04(c), the
requirements of this Section 2.04(a)(ii) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the holder of such beneficial interests in the
Restricted Global Securities. Upon satisfaction of all of the requirements
for
transfer or exchange of beneficial interests in Global Securities contained
in
this Indenture and the Securities or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant Global
Securities pursuant to Section 2.04(f).
(iii)
Transfer
of Beneficial Interests to Another Restricted Global Security
.
A
beneficial interest in any Restricted Global Security may be transferred to
a
Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Security if the transfer complies with the
requirements of Section 2.04(a)(ii) above and the Registrar receives the
following:
(A)
if
the
transferee shall take delivery in the form of a beneficial interest in the
144A
Global Security, then the transferor must deliver a certificate in the form
of
Exhibit
F
,
including the certifications in item (1) thereof; and
(B)
if
the
transferee shall take delivery in the form of a beneficial interest in a
Legended Regulation S Global Security, then the transferor must deliver a
certificate in the form of
Exhibit
F
,
including the certifications in item (2) thereof.
(iv)
Transfer
and Exchange of Beneficial Interests in a Restricted Global Security for
Beneficial Interests in an Unrestricted Global Security
.
A
beneficial interest in any Restricted Global Security may be exchanged by any
Holder thereof for a beneficial interest in an Unrestricted Global Security
or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security if the exchange or transfer complies
with the requirements of Section 2.04(a)(ii) above and:
(A)
such
exchange or transfer is effected pursuant an Exchange Offer in accordance with
an applicable Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee,
in
the case of a transfer, certifies in the applicable Letter of Transmittal (1)
it
is not an affiliate (as defined in Rule 144) of the Company, (2) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to
participate in, a distribution of the Exchange Securities to be issued in such
Exchange Offer and (3) it is acquiring the Exchange Securities in its
ordinary
course of business;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the applicable Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the applicable Registration Rights
Agreement; or
(D)
the
Registrar receives the following:
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(1)
|
if
the holder of such beneficial interest in a Restricted Global Security
proposes to exchange such beneficial interest for a beneficial interest
in
an Unrestricted Global Security, a certificate from such holder in
the
form of
Exhibit
G
,
including the certifications in item (a) thereof;
or
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(2)
|
if
the holder of such beneficial interest in a Restricted Global Security
proposes to transfer such beneficial interest to a Person who shall
take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security, a certificate from such holder in the form of
Exhibit
F
,
including the certifications in item (4)
thereof;
|
and,
in
each such case set forth in this subparagraph (D), if the Registrar or the
Company so requests or if the Applicable Procedures so require, an opinion
of
counsel in form reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with the Securities
Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the
Securities Act.
If
any
such transfer pursuant to this Section 2.04(a) is effected at a time when a
Global Security has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 3.03 hereof,
the
Trustee shall authenticate one or more Global Securities in an aggregate
principal amount equal to the aggregate principal amount of beneficial interests
transferred.
Beneficial
interests in an Unrestricted Global Security cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Restricted Global Security.
(b)
Transfer
and Exchange of Definitive Securities for Definitive Securities
.
Upon
request by a Holder of Definitive Securities and such Holder’s compliance with
the provisions of this Section 2.04(b), the Registrar shall register the
transfer or exchange of
Definitive
Securities. Prior to such registration of transfer or exchange, the requesting
Holder shall present or surrender to the Registrar the Definitive Securities
duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the requesting Holder shall provide
any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.04(b).
(i)
Restricted
Definitive Securities to Restricted Definitive Securities
.
Any
Restricted Definitive Security may be transferred to and registered in the
name
of Persons who take delivery thereof in the form of a Restricted Definitive
Security if the Registrar receives the following:
(A)
if
the
transfer shall be made pursuant to Rule 144A under the Securities Act, then
the
transferor must deliver a certificate in the form of
Exhibit F
,
including the certifications in item (1) thereof; and
(B)
if
the
transfer shall be made pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must deliver a
certificate in the form of
Exhibit
F
,
including the certifications in item (3) thereof.
(ii)
Restricted
Definitive Securities to Unrestricted Definitive Securities
.
Any
Restricted Definitive Security may be exchanged by the Holder thereof for an
Unrestricted Definitive Security or transferred to a Person or Persons who
take
delivery thereof in the form of an Unrestricted Definitive Security
if:
(A)
such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with the applicable Registration Rights Agreement and the Holder, in the case
of
an exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that (1) it is not an affiliate (as defined
in
Rule 144) of the Company, (2) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Securities to be issued in such
Exchange Offer and (3) it is acquiring the Exchange Securities in its ordinary
course of business;
(B)
any
such
transfer is effected pursuant to an Shelf Registration Statement in accordance
with the applicable Registration Rights Agreement;
(C)
any
such
transfer is effected by a Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the applicable Registration Rights
Agreement; or
(D)
the
Registrar receives a certificate from such Holder in the form of
Exhibit
G
,
including the certifications in item (c) thereof and, if the Registrar so
requests, an opinion of counsel in form reasonably acceptable to the Company
to
the effect that such exchange or transfer is
in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required
in
order to maintain compliance with the Securities Act.
(iii)
Unrestricted
Definitive Securities to Unrestricted Definitive Securities
.
A
Holder of Unrestricted Definitive Securities may transfer such Securities to
a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Security. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Securities pursuant to the
instructions from the Holder thereof.
(c)
Exchange
Offer
.
Upon
the occurrence of an Exchange Offer in accordance with the applicable
Registration Rights Agreement, the Company shall issue and, upon receipt of
an
Authentication Order in accordance with Section 3.03, the Trustee shall
authenticate (i) one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of the beneficial interests
in
the Restricted Global Securities tendered for acceptance by Persons that certify
in the applicable Letters of Transmittal that (x) they are not affiliates (as
defined in Rule 144) of the Company, (y) they are not engaged in, and do not
intend to engage in, and have no arrangement or understanding with any Person
to
participate in, a distribution of the Exchange Securities to be issued in such
Exchange Offer and (z) they are acquiring the Exchange Securities in their
ordinary course of business and (ii) Unrestricted Definitive Securities in
an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Securities accepted for exchange in the Exchange Offer. Concurrently
with the issuance of such Securities, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Securities to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Restricted Global
Securities so accepted Unrestricted Global Securities in the appropriate
principal amount.
(d)
Private
Placement Legend
.
Except
as permitted below, each Global Security and each Definitive Security (and
all
Securities issued in exchange therefor or substitution thereof) that are not
registered under the Securities Act shall bear a legend in substantially the
following form:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933,
AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN THE
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT AS IN EFFECT
ON
THE DATE OF THE TRANSFER OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO
FORD
MOTOR CREDIT COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; (C) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR
(E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
(3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED
HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
Notwithstanding
the foregoing, any Global Security or Definitive Security issued pursuant to
subparagraph (a)(iv), (b)(ii), (b)(iii) or (c) to this Section 2.04 (and all
Securities issued in exchange therefor or substitution thereof) shall not bear
the Private Placement Legend.
(e)
Regulation
S Global Security Legend
.
Each
Regulation S Global Security shall bear a legend in substantially the following
form:
THE
RIGHTS ATTACHING TO THIS REGULATION S GLOBAL SECURITY, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR OTHER SECURITIES OF THIS SERIES, ARE
AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
(f)
Cancellation
and/or Adjustment of Global Securities
.
At such
time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 3.09 hereof. At any time prior to such cancellation,
if
any beneficial interest in a Global Security is exchanged for or transferred
to
a Person who shall take delivery thereof in the form of a beneficial interest
in
another Global Security or for Definitive Securities, the principal amount
of
Securities represented by such Global Security shall be reduced accordingly
and
an endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if
the
beneficial interest is being exchanged for or transferred to a Person who shall
take delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased
accordingly
and an endorsement shall be made on such Global Security by the Trustee or
by
the Depositary at the direction of the Trustee to reflect such
increase.
(g)
Certifications,
Certificates and Opinions
.
All
certifications, certificates and opinions of counsel required to be submitted
to
the Registrar pursuant to this Section 2.04 to effect a registration of transfer
or exchange may be submitted by facsimile followed by delivery of the original.”
(c)
Amendments
to Article Three
(i)
Section
3.01 shall be amended by
:
(A)
deleting
the word “and” at the end of Subsection 3.01(17);
(B)
redesignating
Subsection 3.01(18) as 3.01(19); and
(C)
adding
a
new Subsection 3.01(18) to read as follows:
“(18)
in
the event that the initial offering of Securities of the Series is not
registered under the Securities Act, whether a Registration Rights Agreement
will be applicable to such Securities; and”.
(ii)
Section
3.05 shall be amended by inserting the following phrase immediately after “At
the option of the Holder,” appearing at the beginning of the third paragraph of
Section 3.05
:
“subject
to any applicable restrictions set forth in Section 2.04,”.
(iii)
Section
3.05 shall be amended by inserting the following phrase immediately after
“Notwithstanding the foregoing, except as otherwise specified as contemplated
by
Section 3.01” appearing at the beginning of the sixth paragraph of Section
3.05
:
“and
subject to any applicable restrictions set forth in Section 2.04”.
(d)
Amendment
to Article Eight
(i)
Section
8.01
shall be amended by inserting the following phrase immediately after “the due
and punctual performance and observance of all the covenants and conditions
of
this Indenture” appearing in clause (i) of Section 8.01
:
“and
any
applicable Registration Rights Agreement”.
(e)
Amendment
to Article Ten
(i)
The
following sentence shall be added to the end of Section 10.06
:
“Additionally,
for so long as any Security bearing a Private Placement Legend remains
outstanding, the Company shall furnish to the Holders of any such Security
and
to their prospective transferees, upon their request, any information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act.”
(f)
Exhibits
Exhibits
F and G to this Eighth Supplemental Indenture shall be added as Exhibits F
and
G, respectively, to the Indenture.
Section
3.
Miscellaneous
Provisions
(a)
This
Eighth Supplemental Indenture is executed by the Company, and by the Trustee
upon the Company’s request, pursuant to the provisions of Section 9.01 of the
Indenture, and the terms and conditions hereof shall be deemed to be part of
the
Indenture for all purposes. The Indenture, as supplemented and amended by this
Eighth Supplemental Indenture, is in all respects hereby adopted, ratified
and
confirmed.
(b)
This
Eighth Supplemental Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
(c)
The
Trustee assumes no responsibility for the correctness of the recitals herein
contained, which shall be taken as the statements of the Company. The Trustee
makes no representations and shall have no responsibility as to the validity
or
sufficiency of this Eighth Supplemental Indenture or the due authorization
and
execution hereof by the Company.
(d)
This
Eighth Supplemental Indenture and each Security (except as provided pursuant
to
Section 3.01 of the Indenture) shall be deemed to be a contract made under
the
laws of the State of New York and for all purposes shall be construed in
accordance with the laws of such state without regard to the conflicts of law
principles.
IN
WITNESS WHEREOF, Ford Motor Credit Company has caused this Eighth Supplemental
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 Secretary or an 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 JPMorgan Chase Bank, N.A., as Trustee
under the Indenture, has caused this Eighth Supplemental Indenture to be duly
signed and acknowledged by one of its Vice Presidents or Assistant Vice
Presidents thereunto duly authorized, and its corporate seal to be affixed
hereunto, and the same to be attested by one of its Assistant Secretaries or
Trust Officers.
FORD
MOTOR CREDIT
COMPANY
By
_____________________________
Name:
Title:
JPMORGAN
CHASE BANK,
N.A.
By
_____________________________
Name:
Title:
EXHIBIT
F
FORM
OF
CERTIFICATE OF TRANSFER
Ford
Motor Credit Company
One
American Road
Dearborn,
Michigan 48126
Attention:
Facsimile:
JPMorgan
Chase Bank, N.A.
4
New
York Plaza, 15
th
Floor
New
York,
New York 10004
Attention:
Facsimile:
Re:
Ford
Motor Credit Company
Reference
is hereby made to the Indenture, dated as of February 1, 1985 (the “
Indenture
”),
between Ford Motor Credit Corporation, a Delaware corporation (the “
Company
”)
and
JPMorgan Chase Bank, N.A., as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
___________________
(the “
Transferor
”)
owns
and proposes to transfer the [Security] [Securities] or interest in such
[Security] [Securities] specified in Annex A hereto, in the principal amount
of
$___________ in such [Security] [Securities] or interests (the “
Transfer
”),
to
________________ (the “
Transferee
”),
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK
ALL THAT APPLY]
[
]
1.
Check
if Transferee will take delivery of a beneficial interest in the 144A Global
Security or a Definitive Security Pursuant to Rule 144A
.
The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act of 1933, as amended (the “
Securities
Act
”),
and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Security for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such
Person and each such account is a “qualified institutional buyer” within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A
and
such Transfer is in compliance with any applicable blue sky securities laws
of
any state of the United States. Upon consummation of the proposed Transfer
in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Security will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Security
and/or the Definitive Security and in the Indenture and the Securities
Act.
[
]
2.
Check
if Transferee will take delivery of a beneficial interest in a Legended
Regulation S Global Security, or a Definitive Security pursuant to Regulation
S
.
The
Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and, accordingly, the Transferor hereby further certifies
that (i) the Transfer is not being made to a person in the United States and
(x)
at the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or
(y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting
on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of
the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than any Initial Purchaser or Dealer Manager). Upon consummation of
the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Legended
Regulation S Global Security and/or the Definitive Security and in the Indenture
and the Securities Act.
[
]
3.
Check
and complete if transfer is pursuant to any provision of the Securities Act
other than Rule 144A or Regulation S
.
The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of
the
United States, and accordingly the Transferor hereby further certifies that
(check one):
[
]
(a)
such
Transfer is being effected pursuant to and in accordance with Rule 144 under
the
Securities Act; or
[
]
(b)
such
Transfer is being effected to the Company or a subsidiary thereof; or
[
]
(c)
such
Transfer is being effected pursuant to an effective registration statement
under
the Securities Act and in compliance with any applicable prospectus delivery
requirements under the Securities Act.
[
]
4.
Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Security or of an Unrestricted Definitive Security
.
[
]
(a)
Check
if Transfer is Pursuant to Rule 144
.
(i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under
the
Securities Act and in compliance with the transfer restrictions contained in
the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and
the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Securities, on Restricted Definitive Securities and in the
Indenture.
[
]
(b)
Check
if Transfer is Pursuant to Regulation S
.
(i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and, in the case of a transfer from a Restricted
Global Security or a Restricted Definitive Security, the Transferor hereby
further certifies that (a) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (b) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (c) the transaction is not
part
of a plan or scheme to evade the registration requirements of the Securities
Act
and (d) the transfer is not being made to a U.S. Person or for the account
or
benefit of a U.S. Person, and (ii) the restrictions on transfer contained in
the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Security will no longer be subject to the restrictions
on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities, on Restricted Definitive Securities and in the
Indenture.
[
]
(c)
Check
if Transfer is Pursuant to Other Exemption
.
(i) The
Transfer is being effected pursuant to and in compliance with an exemption
from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained
in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Security will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities or Restricted Definitive Securities and in the
Indenture.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
Dated: _______________________________
________________________________
[Insert Name of Transferor]
By:__________________________________
Name:
Title:
DTC
Participant No. _________
ANNEX
A
TO CERTIFICATE OF TRANSFER
1.
The
Transferor owns and proposes to transfer the following:
[CHECK
ONE OF (a) OR (b)]
[
]
(a)
a
beneficial interest in the:
(i)
144A
Global Security (CUSIP __________); or
(ii)
Regulation
S Global Security (CUSIP __________); or
[
]
(b)
a
Restricted Definitive Security.
2.
After
the
Transfer the Transferee will hold:
[CHECK
ONE]
[
]
(a)
a
beneficial interest in the:
(i)
144A
Global Security (CUSIP __________); or
(ii)
Regulation
S Global Security (CUSIP __________); or
(iii)
Unrestricted
Global Security (CUSIP __________); or
[
]
(b)
a
Restricted Definitive Security; or
[
]
(c)
an
Unrestricted Definitive Security,
in
accordance with the terms of the
Indenture.
EXHIBIT
G
FORM
OF
CERTIFICATE OF EXCHANGE
Ford
Motor Credit Company
One
American Road
Dearborn,
Michigan 48126
Attention:
Facsimile:
JPMorgan
Chase Bank, N.A.
4
New
York Plaza, 15
th
Floor
New
York,
New York 10004
Attention:
Facsimile:
Re:
Ford
Motor Credit Company - [Insert Title of Securities]
Reference
is hereby made to the Indenture, dated as of February 1, 1985, as supplemented
(the “
Indenture
”),
between Ford Motor Credit Company, a Delaware corporation (the “
Company
”)
and
JPMorgan Chase Bank, N.A., as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________________________
(the “
Owner
”)
owns
and proposes to exchange the [Security] [Securities] or interest in such
[Security] [Securities] specified herein, in the principal amount of
$____________ in such [Security] [Securities] or interests (the “
Exchange
”).
In
connection with the Exchange, the Owner hereby certifies that:
[
]
(a)
Check
if Exchange is from beneficial interest in a Restricted Global Security to
beneficial interest in an Unrestricted Global Security
.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Security for a beneficial interest in an Unrestricted Global Security
in
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Securities and pursuant to and in accordance with
the
United States Securities Act of 1933, as amended (the “
Securities
Act
”),
(iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global
Security is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
[
]
(b)
Check
if Exchange is from beneficial interest in a Restricted Global Security to
Unrestricted Definitive Security
.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Security for an Unrestricted Definitive Security, the Owner hereby
certifies (i) the Definitive Security is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Securities
and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture
and
the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Security is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
[
]
(c)
Check
if Exchange is from Restricted Definitive Security to Unrestricted Definitive
Security
.
In
connection with the Owner’s Exchange of a Restricted Definitive Security for an
Unrestricted Definitive Security, the Owner hereby certifies (i) the
Unrestricted Definitive Security is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Securities and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Security is being acquired in compliance with any
applicable blue sky securities laws of any state of the United
States.
[
]
(d)
Check
if Exchange is from beneficial interest in a Restricted Global Security to
Restricted Definitive Security
.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Security for a Restricted Definitive Security with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Security
is
being acquired for the Owner’s own account without transfer. Upon consummation
of the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Security issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on
the Restricted Definitive Security and in the Indenture and the Securities
Act.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
Dated: _______________________________
________________________________
[Insert Name of Transferor]
By:__________________________________
Name:
Title:
DTC
Participant No. _________