| Proposed | Proposed maximum | |||||||
| Title of each class of | Amount to be | maximum offering | aggregate | Amount of | ||||
| securities to be registered | registered | price per unit | offering price | registration fee | ||||
|
Floating Rate Demand Notes
|
$18,000,000,000 | 100% | $18,000,000,000 | $0 (1) | ||||
| (1) | Estimated solely for the purpose of determining the registration fee. This registration statement covers all investments in the Notes up to $18 billion, with fees based on the net aggregate principal amount of Notes outstanding from this offering not exceeding $10 billion at a particular time. Registration fees for up to $10 billion net aggregate principal amount of Notes were paid previously in connection with Registration Statements Nos. 333-107955, 333-45015, and 333-92595. |
| • | The Notes will pay interest above the average rate of taxable U.S. money market funds. | |
| • | You may redeem your Notes at any time. | |
| • | Your investment is recorded by an Agent Bank appointed by us. |
| • | Your investment is not a bank account and is not insured by the Federal Deposit Insurance Corporation or any other insurance. | |
| • | The Notes are not an investment in a money market mutual fund and are not subject to the requirements of the Investment Company Act of 1940 (including requirements relating to diversification and quality of investments). | |
| • | The Notes are unsecured obligations of Ford Credit and only Ford Credit’s assets that have not been sold or securitized are available to pay the principal of and interest on the Notes. It is possible for you to lose some or all of your investment in the Notes, including accrued interest, if Ford Credit is unable to pay its debts, becomes bankrupt or seeks creditor protection. | |
| • | The Notes are not obligations of or guaranteed by Ford Motor Company, the Agent Bank or anyone else. | |
| • | The Notes are not transferable. |
| Page | |||||
|
Summary
|
3 | ||||
|
Risk Factors
|
4 | ||||
|
Where You Can Find More Information
|
5 | ||||
|
Information Concerning Ford Credit
|
5 | ||||
|
Description of Notes
|
7 | ||||
|
Interest Rate Information
|
7 | ||||
|
How to Invest
|
8 | ||||
|
How to Redeem Investments
|
10 | ||||
|
Indenture and Trustee
|
11 | ||||
|
Limitation on Liens
|
12 | ||||
|
Merger and Consolidation
|
12 | ||||
|
Events of Default
|
12 | ||||
|
Modification of Indenture
|
13 | ||||
|
Agent Bank and Administration
|
13 | ||||
|
Taxes
|
13 | ||||
|
Termination, Suspension or Modification
|
13 | ||||
|
Rights Not Transferable
|
14 | ||||
|
Ratio of Earnings to Fixed Charges
|
14 | ||||
|
Use of Proceeds
|
14 | ||||
|
Plan of Distribution
|
14 | ||||
|
Legal Opinions
|
14 | ||||
|
Experts
|
14 | ||||
2
3
Table of Contents
| Long-Term | Short-Term | Outlook | ||||||||||
|
• Dominion Bond Rating Service Limited
|
BBB(high) | R-2(high) | Negative | |||||||||
|
• Fitch, Inc.
|
BBB | F2 | Negative | |||||||||
|
• Moody’s Investors Service, Inc.*
|
Baa2 | P2 | Negative | |||||||||
|
• Standard & Poor’s Rating Services,
a division of McGraw-Hill Companies, Inc. |
BB+ | B-1 | Negative | |||||||||
| * | On June 22, 2005, Moody’s Investors Service, Inc. announced that it had placed Ford Credit’s long-term and short-term ratings under review for possible downgrade. |
4
| • | Annual Report on Form 10-K for the year ended December 31, 2004, referred to hereafter as the 2004 10-K Report. | |
| • | Quarterly Report on Form 10-Q for the quarter ended March 31, 2005, referred to hereafter as the First Quarter 10-Q Report. | |
| • | Current Reports on Form 8-K dated March 16, 2005, April 1, 2005, April 8, 2005, April 14, 2005, April 20, 2005, May 3, 2005, May 25, 2005, June 1, 2005, June 13, 2005, June 21, 2005, and July 1, 2005. | |
|
Ford Motor Credit Company
One American Road Dearborn, MI 48126 Attn: Corporate Secretary 1-800-426-2888 |
| • | Retail financing — purchasing retail installment sale contracts and retail lease contracts from dealers, and offering financing to commercial customers, primarily vehicle leasing companies and fleet purchasers, to lease or purchase vehicle fleets; | |
| • | Wholesale financing — making loans to dealers to finance the purchase of vehicle inventory, also known as floorplan financing; and | |
| • | Other financing — making loans to dealers for working capital, improvements to dealership facilities, and to purchase and finance dealership real estate. |
5
| • | Payments made under retail installment sale contracts and retail leases that we purchase, including interest supplements and other support payments from Ford on special-rate retail financing programs; | |
| • | Investment and other income related to sold receivables; and | |
| • | Payments made under wholesale and other dealer loan financing programs. |
6
7
8
9
10
11
12
13
•
You will not be able to have the Notes registered in your name.
•
You will not be able to receive a physical certificate for the
Notes.
•
Our obligations under the Notes, as well as the obligations of
the Trustee, will run only to owners of beneficial interests in
the Notes as recorded in records maintained by the Depositary or
the Agent Bank.
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•
certain Mortgages created or incurred to secure financing of the
export or marketing of goods outside the United States;
•
Mortgages on accounts receivable payable in foreign currencies
securing indebtedness incurred and payable outside the United
States;
•
Mortgages in favor of Ford Credit or any Restricted Subsidiary;
•
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;
•
deposits made in connection with pending litigation;
•
Mortgages existing at the time of acquisition of the assets
secured thereby (including acquisition through merger or
consolidation) and certain purchase money Mortgages; and
•
any extension, renewal or replacement of any Mortgage or
Mortgages referred to in the foregoing clauses, inclusive.
(Section 5.05 in the Indenture.)
•
failure to pay principal or interest when due;
•
failure to perform any other covenants for 90 days after notice;
and
•
the bankruptcy, insolvency or related reorganization of Ford
Credit. (Section 7.01 in the Indenture.)
Table of Contents
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14
|
Securities and Exchange Commission registration fee
|
$ | 0 | |||
|
Printing and engraving
|
$ | 290,000 | |||
|
Legal fees and expenses
|
$ | 5,000 | |||
|
Accounting fees
|
$ | 10,000 | |||
|
Fees and expenses of Trustee
|
$ | 60,000 | |||
|
Miscellaneous
|
$ | 25,000 | |||
|
Total
|
$ | 390,000 | |||
| (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, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee 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, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee 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 the person 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. | |
| (c) To the extent that a present or former director or officer 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, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith. |
II-1
| (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 present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) 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 such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation 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 such person’s 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, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person 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 employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee 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 such person 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 who acted in good faith and in a manner such persons 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. |
II-2
| (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. |
II-3
| No member of the Committee or alternate for a member or director, officer or employee 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 employee 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 employee 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 |
II-4
| 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. |
| Exhibit No. | Description | |||
| Exhibit 4-A | Indenture dated as of July 1, 1985 between Ford Credit and The Bank of New York, Trustee, filed as Exhibit 4-A to Registration Statement No. 2-96762 and incorporated herein by reference. | |||
| Exhibit 4-B | Form of Note is included in Exhibit 4-I. | |||
| Exhibit 4-C | Form of First Supplemental Indenture dated as of November 15, 1987 between Ford Credit and The Bank of New York, Trustee, filed as Exhibit 4-C to Registration Statement No. 33-18496 and incorporated herein by reference. | |||
| Exhibit 4-D | Form of Second Supplemental Indenture dated as of October 15, 1988 between Ford Credit and The Bank of New York, Trustee, filed as Exhibit 4-D to Registration Statement No. 33-24928 and incorporated herein by reference. | |||
| Exhibit 4-E | Form of Third Supplemental Indenture dated as of March 1, 1996 between Ford Credit and The Bank of New York, Trustee. Filed as Exhibit 4-E to Registration Statement No. 33-62973 and incorporated herein by reference. | |||
II-5
| Exhibit No. | Description | |||
| Exhibit 4-F | Form of Fourth Supplemental Indenture dated as of March 1, 1998 between Ford Credit and The Bank of New York, Trustee. Filed as Exhibit 4-F to Registration Statement No. 333-45015 and incorporated herein by reference. | |||
| Exhibit 4-G | Form of Fifth Supplemental Indenture dated as of February 1, 2000 between Ford Credit and The Bank of New York, Trustee. Filed as Exhibit 4-G to Registration Statement No. 333-92595 and incorporated herein by reference. | |||
| Exhibit 4-H | Form of Sixth Supplemental Indenture dated as of August 27, 2003 between Ford Credit and The Bank of New York, Trustee. Filed as Exhibit 4-H to Registration Statement 333-107955 and incorporated herein by reference. | |||
| Exhibit 4-I | Form of Seventh Supplemental Indenture between Ford Credit and The Bank of New York, Trustee. | |||
| Exhibit 4-J | Ford Interest Advantage Terms and Conditions. | |||
| Exhibit 5 | Opinion of Stacy P. Thomas, Assistant Secretary of Ford Credit, as to the legality of the Notes registered hereunder. | |||
| Exhibit 12-A | Calculation of Ratios of Earnings to Fixed Charges of Ford Credit, incorporated by reference to Exhibit 12 to Ford Credit’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2005. | |||
| Exhibit 12-B | Calculation of Ratios of Earnings to Fixed Charges of Ford, incorporated by reference to Exhibit 12 to Ford’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2005. | |||
| Exhibit 15 | Letter from PricewaterhouseCoopers LLP regarding unaudited interim financial information.* | |||
| Exhibit 23-A | Consent of PricewaterhouseCoopers LLP.* | |||
| Exhibit 23-B | Consent of Stacy P. Thomas is contained in his opinion filed as Exhibit 5 to this Registration Statement. | |||
| Exhibit 24 | Powers of Attorney.* | |||
| Exhibit 25 | Statement of Eligibility on Form T-1 of The Bank of New York, Trustee.* | |||
| * | Previously filed. |
| (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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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; |
II-6
II-7
II-8
FORD MOTOR CREDIT COMPANY
By:
Michael E. Bannister*
(Michael E. Bannister)
Chairman of the Board
and Chief Executive Officer
Signature
Title
Date
Michael E. Bannister*
Chairman of the Board, Chief Executive Officer, and Director
(principal executive officer)
David P. Cosper*
Executive Vice President, Chief Financial Officer
and Treasurer
(principal financial and accounting officer)
Don R. Leclair*
Director and Audit Committee Member
James C. Gouin*
Director and Audit Committee Member
July 1, 2005
Ann Marie Petach*
Director and Audit Committee Member
Terry D. Chenault*
Director
John T. Noone*
Director
Richard C. Van Leeuwen*
Director
A. J. Wagner*
Director
*By: /s/
Stacy P.
Thomas
Attorney-in-Fact
Table of Contents
| Exhibit No. | Description | |||
| Exhibit 4-A | Indenture dated as of July 1, 1985 between Ford Credit and The Bank of New York, Trustee, filed as Exhibit 4-A to Registration Statement No. 2-96762 and incorporated herein by reference. | |||
| Exhibit 4-B | Form of Note is included in Exhibit 4-I. | |||
| Exhibit 4-C | Form of First Supplemental Indenture dated as of November 15, 1987 between Ford Credit and The Bank of New York, Trustee, filed as Exhibit 4-C to Registration Statement No. 33-18496 and incorporated herein by reference. | |||
| Exhibit 4-D | Form of Second Supplemental Indenture dated as of October 15, 1988 between Ford Credit and The Bank of New York, Trustee, filed as Exhibit 4-D to Registration Statement No. 33-24928 and incorporated herein by reference. | |||
| Exhibit 4-E | Form of Third Supplemental Indenture dated as of March 1, 1996 between Ford Credit and The Bank of New York, Trustee. Filed as Exhibit 4-E to Registration Statement No. 33-62973 and incorporated herein by reference. | |||
| Exhibit 4-F | Form of Fourth Supplemental Indenture dated as of March 1, 1998 between Ford Credit and The Bank of New York, Trustee. Filed as Exhibit 4-F to Registration Statement No. 333-45015 and incorporated herein by reference. | |||
| Exhibit 4-G | Form of Fifth Supplemental Indenture dated as of February 1, 2000 between Ford Credit and The Bank of New York, Trustee. Filed as Exhibit 4-G to Registration Statement No. 333-92595 and incorporated herein by reference. | |||
| Exhibit 4-H | Form of Sixth Supplemental Indenture dated as of August 27, 2003 between Ford Credit and The Bank of New York, Trustee. Filed as Exhibit 4-H to Registration Statement 333-107955 and incorporated herein by reference. | |||
| Exhibit 4-I | Form of Seventh Supplemental Indenture between Ford Credit and The Bank of New York, Trustee. | |||
| Exhibit 4-J | Ford Interest Advantage Terms and Conditions. | |||
| Exhibit 5 | Opinion of Stacy P. Thomas, Assistant Secretary of Ford Credit, as to the legality of the Notes registered hereunder. | |||
| Exhibit 12-A | Calculation of Ratios of Earnings to Fixed Charges of Ford Credit, incorporated by reference to Exhibit 12 to Ford Credit’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2005. | |||
| Exhibit 12-B | Calculation of Ratios of Earnings to Fixed Charges of Ford, incorporated by reference to Exhibit 12 to Ford’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2005. | |||
| Exhibit 15 | Letter from PricewaterhouseCoopers LLP regarding unaudited interim financial information.* | |||
| Exhibit 23-A | Consent of PricewaterhouseCoopers LLP.* | |||
| Exhibit 23-B | Consent of Stacy P. Thomas is contained in his opinion filed as Exhibit 5 to this Registration Statement. | |||
| Exhibit 24 | Powers of Attorney.* | |||
| Exhibit 25 | Statement of Eligibility on Form T-1 of The Bank of New York, Trustee.* | |||
| * | Previously filed. |
II-9
EXHIBIT 4-I
FORD MOTOR CREDIT COMPANY
AND
THE BANK OF NEW YORK,
TRUSTEE
SEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF [ ], 2005
SUPPLEMENTAL TO INDENTURE
DATED AS OF JULY 1, 1985, AS SUPPLEMENTED
BY THE FIRST SUPPLEMENTAL INDENTURE DATED
AS OF NOVEMBER 15, 1987, THE SECOND SUPPLEMENTAL
INDENTURE DATED AS OF OCTOBER 15, 1988, THE
THIRD SUPPLEMENTAL INDENTURE DATED AS OF
MARCH 1, 1996, THE FOURTH SUPPLEMENTAL
INDENTURE DATED AS OF MARCH 1, 1998, THE
FIFTH SUPPLEMENTAL INDENTURE DATED AS OF
FEBRUARY 1, 2000, AND THE SIXTH SUPPLEMENTAL
INDENTURE DATED AS OF AUGUST 27, 2003
FLOATING RATE DEMAND NOTES
SEVENTH SUPPLEMENTAL INDENTURE, dated as of the [ ] day of [ ], 2005, between Ford Motor Credit Company, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes called the "Company"), party of the first part, and The Bank of New York, a corporation duly incorporated and existing under the laws of the State of New York (hereinafter sometimes called the "Trustee"), as Trustee under the indenture of the Company (the "Original Indenture"), dated as of July 1, 1985, as supplemented by a first supplemental indenture (the "First Supplemental Indenture") dated as of November 15, 1987, a second supplemental indenture (the "Second Supplemental Indenture") dated as of October 15, 1988, a third supplemental indenture (the "Third Supplemental Indenture") dated as of March 1, 1996, a fourth supplemental indenture (the "Fourth Supplemental Indenture") dated as of March 1, 1998, a fifth supplemental indenture (the "Fifth Supplemental Indenture") dated as of February 1, 2000 and a Sixth Supplemental Indenture (the "Sixth Supplemental Indenture") dated as of August 27, 2003 (the "Original Indenture, as supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture and the Sixth Supplemental Indenture, and as amended and further supplemented hereby, being hereinafter called the "Indenture"), party of the second part.
WHEREAS, the Company desires to provide for the issuance from time to time of Floating Rate Demand Notes of the Company (hereinafter called the "Notes") issuable for the purposes and subject to the limitations contained in the Indenture, as amended and supplemented hereby;
WHEREAS, Notes in the aggregate principal amount of $250,000,000 have been previously authorized for issuance from time to time under the Original Indenture and additional Notes have been previously authorized for issuance in the aggregate principal amount of $250,000,000 under the First Supplemental Indenture, $500,000,000 under the Second Supplemental Indenture, $1,000,000,000 under the Third Supplemental Indenture, $2,000,000,000 under the Fourth Supplemental Indenture, $3,000,000,000 under the Fifth Supplemental Indenture and $3,000,000,000 under the Sixth Supplemental Indenture;
WHEREAS, the Company desires to provide that the aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is not limited;
WHEREAS, Section 11.01(b) of the Indenture provides that the Company and the Trustee may from time to time enter into one or more indentures supplemental thereto to add to the covenants of the Company such further covenants, restrictions, conditions or provisions for the protection of the holders of the Notes;
WHEREAS, Section 11.01(c) of the Indenture provides that the Company and the Trustee may from time to time enter into one or more indentures supplemental thereto to cure any ambiguity or supplement any provision contained in the Indenture or in any supplemental indenture which may be defective or inconsistent with any other provision contained therein or to make such other provisions in regard to matters of questions arising under the Indenture as shall not adversely affect the interests of the holders of the Notes;
WHEREAS, Section 11.01(f) of the Indenture provides that the Company and the Trustee may from time to time enter into one or more indentures supplemental thereto to create Notes in addition to the Notes initially issuable under the Indenture and identical thereto;
WHEREAS, Section 11.01(g) of the Indenture provides that the Company and the Trustee may from time to time enter into one or more indentures supplemental thereto to modify, amend or supplement the Indenture in such a manner as to reflect any termination, suspension or modification of the Plan as permitted under the Plan;
WHEREAS, the Company has made modifications to the Plan (as defined in the Original Indenture) to change the name of the "Ford Money Market Account Plan" to "Ford Interest Advantage Terms and Conditions", to change the name under which the Notes are offered from "Ford Money Market Account" to "Ford Interest Advantage", and to provide for the issuance of Notes in global form;
WHEREAS, the text of the Notes and the Trustee's certificate of authentication to be borne by the Notes are to be substantially in the forms set forth in Exhibit A hereto; and
WHEREAS, the Company represents that all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee as in the Indenture and this Seventh Supplemental Indenture provided, the valid, binding and legal obligations of the Company and to constitute these presents a valid indenture and agreement according to its terms, have been done and performed, and the execution of this Seventh Supplemental Indenture and the issue under the Indenture, as amended and supplemented hereby, of the Notes have in all respects been duly authorized, and the Company, in the exercise of legal right and power in it vested, is executing this Seventh Supplemental Indenture and proposes to make, execute, issue and deliver the Notes.
NOW, THEREFORE:
In order to declare the terms and conditions upon which the Notes are authenticated, issued and delivered, and in consideration of the premises, of the purchase and acceptance of the Notes by the holders thereof and of 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 of the Notes, as follows:
ARTICLE ONE.
DEFINED TERMS AND NAMES
SECTION 1.01. Definitions. Effective on the date of this Seventh Supplemental Indenture, with respect to Notes issued on or after the date of this Seventh Supplemental Indenture, for all purposes of the Indenture and this Seventh Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires, (i) the terms defined in this Article have the meanings assigned to them in this Article, (ii) any term that is defined in both the Original Indenture and this Seventh Supplemental Indenture shall have the meaning assigned to such term in this Seventh Supplemental Indenture, (iii) any capitalized term that is used in this Seventh
Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture, and (iv) as used in this Seventh Supplemental Indenture, the terms "herein," "hereof," "hereby," "hereto," "hereunder" and other words of similar import refer to this Seventh Supplemental Indenture.
Board Resolution:
The term "Board Resolution" 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.
Definitive Note:
The term "Definitive Note" shall mean a certificated Note registered in the name of the Noteholder thereof and issued in accordance with Section 2.12 of the Indenture, as amended hereby, in the form of Exhibit A hereto.
Depositary:
The term "Depositary" shall mean, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.11 of the Indenture, as amended hereby, as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary under the Indenture, as amended hereby, by the Company.
Global Note Legend:
The term "Global Note Legend" shall mean the legend set forth in
Section 2.02 of the Indenture, as amended hereby, which is required to be placed
on all Global Notes issued under this Seventh Supplemental Indenture.
Global Notes:
The term "Global Notes" shall mean a permanent global note in the form of Exhibit A attached hereto that is deposited with or on behalf of and registered in the name of the Depositary.
Program Account:
The term "Program Account" shall mean, with respect to each beneficial holder of Notes issued hereunder pursuant to the Terms and Conditions, an account established by the Agent Bank for such person to which all investments in Notes, whether in global or definitive form, made by such person from time to time under the Terms and Conditions shall be credited, all interest paid by the Company from time to time in respect of such investments shall be credited and all amounts paid to such person in connection with the redemption of Notes or otherwise in respect of such investments shall be debited.
Program Balance and Principal Balance:
The terms "Program Balance" and "Principal Balance" shall mean (i) with respect to a Global Note and the Program Accounts relating thereto, the aggregate principal amount from time to time credited to all such Program Accounts, including but not limited to the aggregate principal amount invested and accrued interest, if any, after deducting amounts debited from all such Program Accounts from time to time, including but not limited to the redemption of the aggregate principal amount and accrued interest, if any, and (ii) with respect to a Definitive Note and the Program Account relating thereto, the aggregate amount from time to time credited to such Program Account after deducting amounts debited from all such Program Account from time to time.
Terms and Conditions:
The term "Terms and Conditions" shall mean the Ford Interest Advantage Terms and Conditions established by the Company, as amended or supplemented from time to time.
SECTION 1.02. Change of Name. Effective on the date of this Seventh Supplemental Indenture, with respect to Notes issued on or after the date of this Seventh Supplemental Indenture, all references in the Indenture to "Ford Money Market Account," "Plan Balance" and "Ford Money Market Account Plan" are hereby replaced by "Ford Interest Advantage," "Program Balance" and "Ford Interest Advantage Terms and Conditions," respectively. Additionally, with respect to the Notes issued on or after the date hereof, the definition for the term "Plan" shall be deleted from Section 1.01 of the Indenture, and all references to the defined term "Plan" in the Indenture shall be replaced with references to the defined term "Terms and Conditions." With respect to the Notes issued on or after the date hereof, the definition for the term "Plan Account" shall be deleted from Section 1.01 of the Indenture, and all references to the defined term "Plan Account" in the Indenture shall be replaced with references to the defined term "Program Account."
ARTICLE TWO.
THE NOTES
SECTION 2.01. Change in Designation; Amount Unlimited. Effective on the date of this Seventh Supplemental Indenture, with respect to the Notes issued on or after the date of this Seventh Supplemental Indenture, Section 2.01 of the Indenture is hereby amended and restated in its entirety to read as follows:
"SECTION 2.01. Designation; Amount Unlimited; Authentication and Delivery of Notes. The Notes shall be designated as Floating Rate Demand Notes and shall be issued in accordance with the Terms and Conditions, the provisions of which are incorporated herein. The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is not limited. Prior to the issuance of Notes under this Indenture, there may be established in or pursuant to a Board Resolution and set forth, or determined in the manner provided, in an Officers' Certificate any limit upon the aggregate principal amount of Notes that
may be authenticated and delivered under this Indenture. Any such Board Resolution and the Officers' Certificate shall be delivered to the Trustee at or prior to the delivery of the applicable Notes for authentication to the Trustee. Subject to the foregoing sentence, the Notes may be signed on behalf of the Company in accordance with Section 2.04 of this Indenture and delivered to the Trustee for authentication accompanied by a written order of the Company, signed by its Chairman of the Board or its President or a Vice President or its Treasurer or its Controller or its Secretary or an Assistant Treasurer or an Assistant Controller or an Assistant Secretary directing the Trustee to authenticate and deliver said Notes, and the Trustee shall thereupon authenticate and deliver said Notes as directed in such written order, without any further action by the Company."
SECTION 2.02. Global Note Provisions.
(a) Effective on the date of this Seventh Supplemental Indenture, with respect to Notes issued on or after the date of this Seventh Supplemental Indenture, Section 2.02 of the Indenture is hereby amended and restated in its entirety to read as follows:
"SECTION 2.02. Form of Notes and Trustee's Certificate. The Notes may be issued in global form and shall be substantially in the form of Exhibit A attached hereto (including the Global Note Legend thereon). The Notes may have additional notations, legends or endorsements required by law, regulation, stock exchange rule or usage. Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate Principal Balance outstanding from time to time as reflected on the books and records of the Company maintained by the Agent Bank under the Terms and Conditions. Each Global Note shall bear a legend in substantially the following form:
"THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE BANK OF NEW YORK OR TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE BANK OF NEW YORK, A NEW YORK CORPORATION, OR ANY SUCCESSOR DEPOSITARY (THE "DEPOSITARY"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN SUCH NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INSOMUCH AS THE DEPOSITARY, AS THE REGISTERED OWNER HEREOF, HAS AN INTEREST HEREIN."
The Trustee's certificate of authentication to be borne by the Notes shall be substantially in the form included in Exhibit A hereto. Notes issued in definitive form shall be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon) and shall be issuable without coupons."
(b) Effective on the date of this Seventh Supplemental Indenture, with respect to Notes issued on or after the date of this Seventh Supplemental Indenture, Section 2.03 of the Indenture is hereby amended and restated in its entirety to read as follows:
"SECTION 2.03 Date. Each Note shall be dated the date of its authentication and shall bear interest from and after such date in accordance with the provisions of the Terms and Conditions."
(c) Effective on the date of this Seventh Supplemental Indenture, with respect to Notes issued on or after the date of this Seventh Supplemental Indenture, the following Sections shall be added at the end of Article Two of the Indenture:
"SECTION 2.11. Depositary. The Company initially appoints The Bank of New York to act as Depositary with respect to the Global Notes and reserves the right to appoint successor depositaries from time to time."
"SECTION 2.12. Transfer and Exchange of Global Notes. Notwithstanding Section 2.10 of this Indenture, a Global Note may be transferred by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes shall be exchanged by the Company for Definitive Notes if (i) the Depositary delivers to the Company a written notice that it is unwilling or unable to continue to act as Depositary and a successor Depositary is not appointed by the Company within 90 days after the date of such notice from the Depositary or (ii) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee. Upon the occurrence of any of the preceding events in (i) or (ii) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Section 2.07 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.12 or Section 2.07 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note."
"SECTION 2.13. Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes pursuant to Section 2.12 hereof, or a particular Global Note has been redeemed or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.08 hereof. At any time prior to such cancellation, if any particular Global Note is redeemed in part, the Principal Balance of Notes represented by such Global Note shall be reduced accordingly on the books and records of the Company maintained by the Agent Bank under the Terms and Conditions to reflect such reduction."
ARTICLE THREE.
MISCELLANEOUS PROVISIONS.
SECTION 3.01. This Seventh Supplemental Indenture is executed by the Company and the Trustee pursuant to the provisions of subsections (b), (c), (f) and (g) of Section 11.01 of the Original Indenture, and the terms and conditions hereof shall be deemed to be part of the Indenture for all purposes. The Indenture, as amended and supplemented hereby, is in all respects hereby adopted, ratified and confirmed.
SECTION 3.02. This Seventh 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.
SECTION 3.03. 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 Seventh Supplemental Indenture or the due authorization and execution hereof by the Company.
SECTION 3.04. Except as specifically amended hereby, all terms and conditions of the Indenture remain in full force and effect.
SECTION 3.05. This Seventh Supplemental Indenture and each Note 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.
IN WITNESS WHEREOF, FORD MOTOR CREDIT COMPANY, the party of the first part, has caused this Seventh 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, 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 THE BANK OF NEW YORK, as Trustee under the Indenture, the party of the second part, has caused this Seventh 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 duly authorized officers.
FORD MOTOR CREDIT COMPANY
Title:
Attest:
Assistant Secretary
[CORPORATE SEAL]
THE BANK OF NEW YORK
Title:
Attest:
[CORPORATE SEAL]
STATE OF MICHIGAN )
) ss.:
COUNTY OF WAYNE )
On this _____ day of ________________, 2005, before me personally came _________________, to me known, who, being by me duly sworn, did depose and say that she/he resides at _______________________________; that she/he is __________________ of FORD MOTOR CREDIT COMPANY, one of the corporations described in and which executed the above instrument; that she/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 she/he signed her/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.
[NOTARIAL SEAL]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this _____ day of __________, 2005, before me personally came __________________, to me known, by me duly sworn, did depose and say that she/he resides at ______________________________________; that she/he is ______________ of THE BANK OF NEW YORK, one of the corporations described in and which executed the above instrument; that she/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 she/he signed her/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.
[NOTARIAL SEAL]
EXHIBIT A
[FORM OF NOTE]
SUBJECT TO THE TERMS AND CONDITIONS, THIS NOTE IS NOT ASSIGNABLE OR TRANSFERABLE, IN WHOLE OR IN PART, EITHER DIRECTLY OR BY OPERATION OF LAW OR OTHERWISE. NO ATTEMPTED ASSIGNMENT OR TRANSFER HEREOF OTHERWISE SHALL BE EFFECTIVE. NOTWITHSTANDING THE FOREGOING, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, TO ANOTHER NOMINEE OF THE BANK OF NEW YORK OR TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE BANK OF NEW YORK, A NEW YORK CORPORATION, AND ANY SUCCESSOR DEPOSITARY (THE "DEPOSITARY"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN SUCH NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INSOMUCH AS THE DEPOSITARY, AS THE REGISTERED OWNER HEREOF, HAS AN INTEREST HEREIN.
FORD MOTOR CREDIT COMPANY
Ford Interest Advantage
Floating Rate Demand Notes
FORD MOTOR CREDIT COMPANY, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter called the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to The Bank of New York, as Depositary, the aggregate unpaid principal amount of up to $ [ ] billion ("Principal Balance"), if any, outstanding from time to time hereunder as shown on the books and records of the Company maintained by the agent (the "Agent Bank") for the Company under the Ford Interest Advantage Terms and Conditions (the "Terms and Conditions"), and, to the extent permitted by law, to pay interest on the Principal Balance, at a rate per annum from time to time determined pursuant to the Terms and Conditions.
Interest on the Principal Balance shall be accrued daily and credited to the Principal Balance hereof as of the last day of each calendar month until the Principal Balance has been paid or duly provided for in accordance with the provisions of the Terms and Conditions.
The Principal Balance is payable, in whole or in part, on demand by the holder of this Note at any time after the date hereof. Accrued interest hereunder not credited to the Principal Balance as herein provided shall be payable in whole on demand by the holder of this Note at any time after the date hereof in accordance with the provisions of the Terms and Conditions. The Principal Balance hereof together with accrued interest hereunder not credited to the Principal Balance as herein provided may be redeemed by the Company in whole at any time following the date hereof, all as more fully set forth below.
Payment of the Principal Balance and accrued and unpaid interest of this Note will be made to the person whose name is set forth above, or in accordance with the instructions of such person given in accordance with the provisions of the Terms and Conditions, at the office or
agency of the Company maintained for that purpose, in the Borough of Manhattan, the City of New York, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts.
SUBJECT TO THE TERMS AND CONDITIONS, THIS NOTE IS NOT ASSIGNABLE OR TRANSFERABLE, IN WHOLE OR IN PART, EITHER DIRECTLY OR BY OPERATION OF LAW OR OTHERWISE. NO ATTEMPTED ASSIGNMENT OR TRANSFER HEREOF OTHERWISE SHALL BE EFFECTIVE.
This Note is a duly authorized issue of Notes of the Company, designated as its Floating Rate Demand Notes (hereinafter called the "Notes"), all issued under and pursuant to an indenture dated as of July 1, 1985, duly executed and delivered by the Company and The Bank of New York, a New York corporation (hereinafter called the "Trustee"), to which indenture and all indentures supplemental thereto (hereinafter called the "Indenture") reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the Notes.
The Company, at its option, may redeem this Note, together with interest thereon accrued and unpaid in accordance with the provisions of the Terms and Conditions (a) to the extent that the aggregate Principal Balance payable to any investor hereunder is less than $1,000 (or such other amount as the Company from time to time may determine), or (b) in the event that the Company shall have elected at any time to suspend or terminate the offering of the Notes.
The Notes are subject to repayment in whole or in part at the option of the beneficial holders thereof on demand by written request, or, if arrangements therefor have been made with the Agent Bank in accordance with the provisions of the Terms and Conditions, by check redemption or electronic transfer.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 66 2/3% of the aggregate Principal Balance of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Notes (other than supplements to the Indenture or supplemental indentures increasing the aggregate principal amount of Notes for issuance thereunder or reflecting modifications of the Plan as permitted thereunder); provided, however, that no such supplemental indenture shall (i) diminish the Principal Balance of any Note, or accrued and unpaid interest thereon, or (ii) reduce the aforesaid percentage of Notes, the consent of the holders of which is required for any such supplemental indenture, without the consent of the holders of all Notes then outstanding. It is also provided in the Indenture that, prior to the declaration of maturity of the Notes upon the occurrence of an Event of Default as permitted by the Indenture, the holders of a majority of the aggregate Principal Balance of the Notes at the time outstanding may on behalf of the holders of all of the Notes waive any past default under the Indenture and its consequences, except a default in the payment of the Principal Balance of or interest on any of the Notes. Any such consent or waiver by the holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such holder.
No reference herein to the Indenture and no reference to any provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the Principal Balance of and interest on this Note at the place, at the respective times, at the rate and in the currency herein prescribed.
At all times after the date hereof the Company, the Trustee, the Agent Bank and any other paying agent may deem and treat the holder hereof, as set forth in the books and records of the
Company maintained by the Agent Bank, as the absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon) for the purpose of receiving payment as herein provided and for all other purposes, and neither the Company nor the Trustee nor any paying agent shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the Principal Balance of or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer, director or employee, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
In the event (i) the Depositary delivers to the Company a written notice that it is unwilling or unable to continue to act as Depositary and a successor Depositary is not appointed by the Company within 90 days after the date of such notice from the Depositary or (ii) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee, the Depositary shall surrender this Note to the Trustee for cancellation whereupon the Company will execute and the Trustee will authenticate and deliver Notes of this series in definitive registered form without coupons, in an aggregate principal amount equal to the principal amount of this Note at the time outstanding in exchange for this Note.
This Note shall be deemed to be a contract made under the law of the State of New York and for all purposes shall be governed by and construed in accordance with the laws of said State.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication shall have been signed manually or in facsimile by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, Ford Motor Credit Company has caused this instrument to be signed by its Chairman of the Board, or its President, or one of its Vice Presidents, and by its Treasurer or one of its Assistant Treasurers, manually or in facsimile, and a facsimile of its corporate seal to be imprinted hereon.
Dated: ___________________ FORD MOTOR CREDIT COMPANY
By __________________________
(Corporate Seal) By __________________________
|
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee,
By _________________________
Authorized Signature
Dated: __________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the attached Note, and all rights thereunder, hereby irrevocably constituting
and appointing ____________________________attorney to transfer said Note on
the books of the Company, with full power of substitution in the premises.
Dated__________________
NOTE: The signature to this assignment must correspond with the name as written upon the face of the attached Note in every particular without alteration or enlargement or any change whatsoever and must be guaranteed by a commercial bank or trust company having its principal office or correspondent in The City of New York or by a member of the New York Stock Exchange.
EXHIBIT 4-J
FORD INTEREST ADVANTAGE
TERMS AND CONDITIONS
The Ford Interest Advantage Terms and Conditions ("Ford Interest Advantage" or the "Program") has been established by Ford Motor Credit Company to provide investors with a convenient means of making investments in floating rate demand notes of Ford Motor Credit Company.
I. Definitions
As hereinafter used:
1. "Investment Application" shall have the meaning set forth in paragraph II hereof.
2. "Investment Register" shall have the meaning set forth in paragraph II hereof.
3. "Agent Bank" shall have the meaning set forth in paragraph VII hereof.
4. "Base Rate" shall have the meaning set forth in paragraph IV hereof.
5. "Business Day" shall mean any day other than a Saturday or a Sunday or a day on which the Agent Bank is authorized or obligated by law to close.
6. "Committee" shall have the meaning set forth in paragraph VIII hereof.
7. "Company" shall mean Ford Motor Credit Company, a Delaware corporation.
8. "Federal Funds" shall mean amounts deposited in a Federal Reserve Bank which are capable of being transferred electronically among member institutions of the Federal Reserve System and which have good value on the date of such transfer.
9. "Incremental Rate" shall have the meaning set forth in paragraph IV hereof.
10. "Indenture" shall have the meaning set forth in paragraph VI hereof.
11. "Money Fund Report" shall mean the report titled Money Fund Report(TM) published weekly by iMoneyNet, Inc., or any successor thereto designated by the Company, which reports the most recent seven-day average yield (non-compounded) for all taxable money funds.
12. "Notes" shall mean the non-transferable floating rate demand notes of the Company issued as a global security pursuant to and in accordance with the terms, conditions and provisions of the Indenture, as in effect from time to time.
13. "Participating Investor" shall mean a person, firm, corporation, or association having a Program Investment registered in his, her or its name.
14. "Program Investment" shall mean a Participating Investor's aggregate investment in the Notes pursuant to the Program as recorded on the Investment Register.
15. "Program Investment Balance" shall have the meaning set forth in paragraph II hereof.
16. "Registered Investment Address" shall have the meaning set forth in paragraph II hereof.
17. "Registered Investment Owner" shall mean the Participating Investor, a trust established for the benefit of such participating Investor, or in the case of a joint Program Investment, persons, firms, corporations or associations who have been designated by the Participating Investor as having a joint interest in the Program Investment, all as recorded on the Investment Register.
18. "Signature Guarantee" shall have the meaning set forth in paragraph V hereof.
19. "Trustee" shall have the meaning set forth in paragraph VI hereof.
II. Establishment of Program Investments; Investment Register
Subject to such limitations or regulations as the Company from time to time may prescribe, an investor may establish and maintain one or more of the following types of investments: individual investments; joint investments; investments by a firm, corporation or association; trust investments; custodial investments pursuant to the applicable Uniform Gifts to Minors Act of the state in which the investor resides; and such other categories of investments as the Company from time to time may determine. Program Investments shall be established by the investor (i) delivering to the Company or to the Agent Bank, as the Company from time to time may designate, a properly executed application (the "Investment Application") which shall require such information and provide such elections as the Company from time to time may determine, together with such other forms and undertakings as may be determined by the Company from time to time, and (ii) making an investment by check concurrently with delivery of the Investment Application, or making an investment by any other method which the Company from time to time may determine.
The Agent Bank shall maintain a listing (the "Investment Register") setting forth such information regarding each Program Investment as the Company from time to time may determine, including but not limited to the name of the Participating Investor, his or her social security number or, if a firm, corporation or association, its Tax Identification Number, the names of other Registered Investment Owners, if any, the address to which notices under the Program are to be sent (the "Registered Investment Address"), the amounts credited to the Program Investment from time to time after deducting amounts debited from the Program Investment from time to time (the "Program Investment Balance") and accrued and unpaid interest on the Program Investment Balance.
III. Investment under the Program; Issuance of Notes
All investments under the Program by a Participating Investor shall be recorded by the Agent Bank as a Program Investment of such Participating Investor. Notes relating to all Program Investments shall be issued as global certificates under the Indenture between the Company and the Trustee, as amended or supplemented from time to time in accordance with the terms thereof. The global certificates will be deposited with a depositary appointed by the
Company, and a record of all beneficial interests in the global certificates corresponding to each Program Investment will be maintained by the depositary or the Agent Bank.
The principal amount of each Note issued to a Participating Investor under the Program shall at all times be equal to the Program Investment Balance in such investor's Program Investment and shall bear interest from time to time at the rate provided for in paragraph IV hereof.
Subject to such limitations and requirements as the Company from time to time may determine, a Participating Investor may make investments under the Program from time to time by delivering to the Agent Bank a check for the amount of the investment. Investments by check shall be credited to a Participating Investor's Program Investment no later than the first Business Day following the Business Day on which the check investment shall be received by the Agent Bank in proper form. Interest shall begin to accrue on such check investment as of the Business Day such check investment shall have been credited to the applicable Program Investment. Anything herein to the contrary notwithstanding, checks shall be accepted for investment under the Program subject to collection at full face value and must be drawn on a U.S. bank payable in U.S. dollars. Amounts invested by check may not be redeemed from a Program Investment for a period of 10 business days following receipt of the check investment in proper form by the Agent Bank or such shorter or longer time as shall be determined from time to time by the Company.
Subject to such limitations and requirements as the Company from time to time may determine, a Participating Investor may make investments under the Program from time to time by electronic transfer of funds to the Agent Bank in the amount of the investment. Investments under the Program by electronic transfer of funds shall be credited to a Participating Investor's Program Investment no later than the Business Day next following the Business Day on which the investment shall be received by the Agent Bank in proper form. Interest shall begin to accrue on such investment at such time as the investment shall have been credited to the the Participating Investor's Program Investment. Anything herein to the contrary notwithstanding, neither the Company nor the Agent Bank shall assume any responsibility for delays in the crediting of investments by electronic transfer resulting from delays in funds wiring systems.
Investments under the Program may be made by such further methods and subject to such limitations and requirements as the Company from time to time may determine.
IV. Interest Rate
Each Note shall earn interest at a floating rate per annum equal to the most recent seven-day average yield (non-compounded), expressed as a percentage, for all taxable money funds listed weekly in the Money Fund Report plus at least 1/4 of one percentage point (the "Base Rate). In addition, the Company may from time to time, at its sole discretion, increase the rate of interest earned on the Notes by adding a per annum percentage to the Base Rate (such percentage added to the Base Rate is hereinafter called the "Incremental Rate"). The amount of any Incremental Rate as applicable to the Program Investment Balance of any Participating Investor may be determined on the basis of the daily balance of such Program Investment or such other basis as shall be determined by the Company and may be changed in whole or in part at any time at the Company's discretion. The Base Rate shall be determined and shall become effective, together with any Incremental Rate determined by the Company, as of the next following Monday each time a new seven-day average yield (non-compounded), expressed as a percentage, for all taxable money funds listed in Money Fund Report is reported
therein. In the event Money Fund Report is not published in any week, or in the event the seven-day average yield for all taxable money funds normally reported therein is not reported in Money Fund Report for any week, then the Base Rate most recently in effect shall continue in effect until such seven-day average yield is next reported. If Money Fund Report ceases to be published, or ceases permanently to set forth seven-day average yields for taxable money funds on a basis comparable to that available at the date the Program first becomes effective, an approximately equivalent effective interest rate shall be selected as the Base Rate based on a formula determined by the Company and communicated to Participating Investors in sufficient time before the effective date thereof, to permit redemptions at the previously effective interest rate.
Interest on each Note shall accrue daily and shall be credited to the principal amount of such Note as of the last day of each calendar month.
V. Redemption of Notes; Termination of Program Investments
Subject to the provisions of this paragraph V, each Registered Investment Owner may redeem all or part of the principal amount of the Note representing amounts credited to such Registered Investment Owner's Program Investment at any time and from time to time as provided in the following paragraphs, or by such other methods and subject to such limitations and requirements as the Company from time to time may determine. The Company may impose such controls on any method of redemption as are deemed necessary to prevent fraud and otherwise protect investors against unauthorized redemptions.
The redemption of invested amounts by a check drawn by a Registered Investment Owner against all or part of the Registered Investment Balance (the "Check Redemption Option") shall be available only in the event a Participating Investor shall have elected the same by a properly completed Investment Application or subsequent written request therefor. If the Check Redemption Option is requested otherwise than by the election of the same on the initial Investment Application, such request shall be accompanied by a Signature Guarantee for each Registered Investment Owner of the Program Investment. For purposes of the Program, a Signature Guarantee ("Signature Guarantee") shall mean a guarantee of signature executed by an authorized signatory of a U.S. commercial bank or Trust Company or member of any national or regional stock exchange or such other financial institution or other source as the Company may in its discretion determine to be acceptable for this purpose. Any redemption of a Program Investment Balance by redemption check may be in any amount not less than $250 (or such other minimum amount as the Company from time to time may determine for all investors under the Program or categories thereof) and shall be signed by each Registered Investment Owner of the Program Investment whose signature is specified as being required on redemption checks in the Investment Application or subsequent written request to add the Check Redemption Option. The Company may, in its sole discretion, accept for payment redemption checks in an amount less than $250 and may assess a fee for processing of such checks.
Upon presentment of a properly executed redemption check meeting the requirements hereof, the Agent Bank will debit the amount of the redemption check from the Program Investment Balance and shall pay the proceeds thereof to the presenter of the check. Interest on the amount of such redemption check shall continue to accrue to but not including the Business Day on which the redemption check is presented for payment to the Agent Bank. A redemption check for the amount greater than the Program Investment Balance at the time of presentment for payment shall not be honored by the Agent Bank.
Anything herein to the contrary notwithstanding, (i) the availability of the option to redeem Notes by redemption check shall not create a checking or other bank account or a depositor or banking relationship with the Company or the Agent Bank, and (ii) the Company may at any time and from time to time modify, suspend or terminate the provisions hereof permitting redemption of Notes by redemption check.
A participating Investor may at any time redeem all or part of the principal amount of a Note by written request to the Agent Bank or, if the Redemption by Bank Check Option has been selected on the Investment Application or in a subsequent written request, telephone or telex request for redemption by bank check in such form and subject to such regulations as the Company from time to time may prescribe. In the event of a request for Redemption by Bank Check, the redemption proceeds shall be paid by bank check and delivered in accordance with the redemption request as soon as practicable following receipt of a redemption request in proper form. Written requests for redemption by bank check shall be signed by the Participating Investor and all other Registered Investment Owners of the Program Investment. Unless the Participating Investor shall have elected the Redemption by Bank Check Option on the Investment Application or in a subsequent written request, each such written redemption request also shall be accompanied by Signature Guarantees for all required signatures. Redemption proceeds by bank check (i) shall be mailed only to the Registered Investment Address or to the bank account designated in the Investment Application or designated in a subsequent written notice or (ii) shall be delivered to the Participating Investor or other Registered Investment Owner in person or at the office of the Agent Bank. By participating in the Program and electing the Redemption by Bank Check Option, the Registered Investment Owners thereby authorize the Agent Bank to effect redemptions by bank check from Program Investments pursuant to redemption instructions received from any person or persons representing themselves to be authorized to deliver such redemption instructions. The records maintained by the Agent Bank with regard to such instructions shall be conclusive and binding on all Registered Investment Owners of the respective Program Investment. Interest on the amount of the redemption shall continue to accrue to but not including the Business day the Agent Bank prepares the bank check.
Subject to such regulations as the Company from time to time may prescribe and if the Redemption by Electronic Transfer Option shall have been elected, a Participating Investor may at any time redeem all or part of the principal amount of a Note by telephone, telex, secure electronic or written request for electronic transfer of Federal Funds, to an account in a commercial bank, the number of which shall have been designated by the investor on the related Investment Application or in a subsequent written request. Written requests for redemption by electronic transfer of Federal Funds shall be signed by the Participating Investor and all other Registered Investment Owners of the Program Investment. Any new election of or change to such predesignated bank account must be requested in writing accompanied by Signature Guarantees for all Registered Investment Owners. Any redemption of amounts included in a Program Investment Balance by electronic transfer of Federal Funds may be in any amount not less than $1,000 (or such other minimum amount as the Company from time to time may determine). By electing the Redemption by Electronic Transfer Option, the Registered Investment Owners thereby authorize the Agent Bank to effect redemptions of the Note by electronic transfer of Federal Funds pursuant to telephone, telex or written redemption instructions received from any person or persons representing themselves to be authorized to deliver such redemption instructions. No signature Guarantees shall be required in connection with redemption instructions for redemption by electronic transfer of Federal Funds to the predesignated bank account. The records maintained by the Agent Bank with regard to such
instructions shall be conclusive and binding on all Registered Investment Owners of the Program Investment. Redemption proceeds distributed pursuant to an electronic redemption request shall be sent by the Agent Bank as soon as practicable to the predesignated bank account following receipt of such request in proper form. Interest on the amount of such electronic redemption shall continue to accrue to but not including the Business day the Agent Bank transfers the redemption proceeds.
Anything herein to the contrary notwithstanding (i) neither the Company nor the Agent Bank assumes any responsibility for delays in the crediting of redemption proceeds upon redemption by electronic transfer of Federal Funds resulting from delays in the funds wiring system or for the authenticity of expedited redemption instructions, and (ii) the Company may modify, terminate or suspend at any time and from time to time provisions of the Program permitting redemption of Notes pursuant to the Redemption by Electronic Transfer Option.
With respect to any Program Investment which shall have a Program Investment Balance of less than $1,000 (or such other amount as the Company from time to time may determine) the Company shall have the right, after 30 days following the mailing of a written notice to the Participating Investor, to terminate such Participating Investor's participation in the Program, to redeem the principal amount of the Note together with accrued and unpaid interest thereon, to mail the proceeds thereof to the Registered Investment Owners as their registered interests shall appear at the Registered Investment Address and to terminate the Program Investment.
The Company also reserves the right to redeem any Program Investment as to which the redemption provisions or other provisions of the Program are determined by the Company, in its sole discretion, to have been abused, or for such other reason as the Company may determine. In such instances the Company may decline to accept future investments from any Registered Investment Owner associated with such Program Investment.
The Company also shall have the right to redeem any Note, together with accrued and unpaid interest thereon, and to terminate the related Program Investment in the event the Program is suspended or terminated pursuant to paragraph XI hereof.
A participating Investor may elect voluntarily to terminate participation in the Program and close a Program Investment by notice to the Agent Bank. Upon election by a Participating Investor to terminate participation in the Program, all amounts credited to the principal amount of the Note held by such investor, together with accrued and unpaid interest to but not including the Business Day next following the effective date of such termination, shall be paid to the Registered Investment Owners as their registered interests shall appear.
VI. Trustee
The Company shall appoint one or more corporations to act as trustee (the "Trustee") for Notes issued pursuant to the Program and shall enter into an indenture (the "Indenture") with such corporation or corporations which meet the requirements of the U. S. Trust Indenture Act of 1939. Subject to the requirements of the Indenture, the Company and the Trustee may amend or supplement the Indenture from time to time.
VII. Agent Bank
The Company shall appoint one or more banks or corporations to act as agent under the Program (the "Agent Bank") and at any time may remove the Agent Bank and appoint a successor Agent Bank. The Company may without reference to or any action by any Participating Investor or other Registered Investment Owner, enter into such agreement or further agreements and take such other steps and execute such other instruments as the Company in its sole discretion may deem necessary or desirable to carry the Program into effect or to facilitate its administration.
VIII. Committee
The Company shall create a Ford Interest Advantage Committee (the "Committee") consisting of at least three members. The Company shall from time to time designate the members of the Committee and an alternate for each of such members, who shall have full power to act in the absence or inability to act of such member. The Committee shall act by a majority of its members, with or without a meeting.
The duly appointed manager or managers responsible for the operation of the Ford Interest Advantage program will oversee the conduct of business provided for under the Program. Such management is responsible for the conduct of day-to-day business operations, development of policies required to meet changing business conditions, and revisions to operating procedures required by the general business purposes of the Company, consistent with the provisions of the Indenture. When substantial changes to the structure of the Program are considered, or where questions arise requiring interpretation of the provisions of the Program, management may consult the Committee.
In such circumstances, the Committee shall have full power and authority to direct the administration of the Program, to interpret its provisions, to adopt forms of use thereunder, to adopt rules and regulations in connection therewith and to make the determinations thereunder provided for it to be made. Any interpretation of the provisions of the Program by the Committee shall be final and conclusive, and shall bind and may be relied on by all parties in interest to the Program.
No member of the Committee or alternate for a member or a director, officer or employee of the Company shall be liable for any action or failure to act under or in connection with the Program, except for his own bad faith. Each director, officer or employee 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, 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 Program 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 the Company may have to indemnify him or hold him harmless.
IX. Program Investment Statements
As soon as practicable after the end of each calendar month, or such other period as may be determined from time to time by the Company, there shall be furnished with respect to each Program Investment a statement setting forth a summary of all transactions in such Program Investment during such month, or other period, including beginning and ending Program Investment Balances, interest credited, and such additional information as the Company from time to time may determine. Such statements shall be deemed to have been accepted by the Participating Investor and other Registered Investment Owners as correct unless written notice to the contrary shall be received by the Agent Bank within 30 days after the mailing of such statement to the Registered Investment Address.
X. Notices, etc.
All notices, statements and other communications from the Agent Bank or the Company to a Participating Investor or other Registered Investment Owner shall be deemed to have been duly given, furnished, delivered or transmitted, as the case may be, when delivered to (or when mailed to) the most recent Registered Investment Address.
All notices, instructions and other communications from a Participating Investor or other Registered Investment Owner to the Company or Agent Bank required or permitted hereunder (including without limitation Investment Applications and changes and terminations thereof and redemption requests) shall be in the respective forms from time to time prescribed therefor by the Company, shall be mailed by first-class mail or delivered to such location as shall be specified in regulations and upon forms prescribed by the Company and shall be deemed to have been duly given and delivered upon receipt by the Company or the Agent Bank, as the case may be, at such location.
From time to time as necessary to facilitate the administration of the Program, the Company, the Agent Bank, the Trustee and the Committee shall deliver to each other copies or consolidations of such notices, instructions or other communications in respect of the Program as it may receive from Participating Investors and Registered Investment Owners.
XI. Termination, Suspension and Modification
The Company may terminate the Program at any time or from time to time suspend or modify any provision thereof. The Company may at any time or from time to time terminate or modify the Program or suspend for any period the operation of any provision thereof in respect of any investors located in one or more jurisdictions. Any such termination, modification or suspension of the Program may affect participants in the Program at the time thereof, as well as future participants, but may not affect the rights of a Participating Investor unless such proposed action shall have been communicated to such Participating Investor in sufficient time prior to the effective date thereof to permit such Participating Investor to redeem amounts credited to a Program Investment together with accrued and unpaid interest in accordance with the terms of the Program in effect prior to the effective date of such termination, modification or suspension.
Anything herein to the contrary notwithstanding, no such termination or modification of the Program or suspension of any provision thereof may diminish the principal amount of any Note, or accrued and unpaid interest thereon.
XII. Miscellaneous
Each Participating Investor shall, upon request, be given a copy of the Program as in effect at the time, and by participating shall be deemed to accept and agree to all the provisions of the Program.
The records of the Company, the Agent Bank, the Trustee and the Committee shall be conclusive in respect of all matters involved in the administration of the Program.
All expenses of administering the Program, including without limitation the fees of the Agent Bank and the Trustee and other expenses charged or incurred by the Agent Bank and the Trustee shall be borne by the Company. No charge or penalty shall be imposed by the Company, the Agent Bank or the Trustee against any Program Investment or Registered Investment Owner solely by reason of participation in the Program; provided, however, that the Company the Agent Bank and the Trustee shall have no liability for any cost incurred by a Registered Investment Owner including, but not limited to, costs incurred in obtaining required Signature Guarantees or in connection with the wiring of funds to make investments under the Program. The Company may also assess charges with respect to any Program Investment for investment activity not in compliance with the terms of the Program, including the issuance of redemption checks in an amount in excess of the amount available for redemption, issuance of checks below the minimum redemption amount, or failure to maintain the minimum investment balance specified by the Company.
The Participating Investor will be charged for dishonored redemption checks and redemption checks on which a stop order has been placed, in an amount determined from time to time by the Company.
The Program shall be governed by and construed in accordance with the laws of the State of Michigan.
EXHIBIT 5
July 1, 2005
Ford Motor Credit Company
One American Road
Dearborn, Michigan 48126
Re: Registration of Securities
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-3 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) on or about the date hereof, by Ford Motor Credit Company, (the “Company”). The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the General Rules and Regulations promulgated under the Securities Act of 1933, as amended (the “Securities Act”), of Floating Rate Demand Notes of the Company (“the Securities”).
As Assistant Secretary of the Company, I am familiar with the Restated Certificate of Incorporation and the By-Laws and with the affairs of the Company. I also have examined such other documents and instruments and have made such further investigation as I have deemed necessary or appropriate in connection with this opinion.
Based on 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 (i) the registration requirements of the Securities Act have been complied with, (ii) the indenture between the Company and the Trustee pursuant to which the Debt Securities are to be issued (the “Indenture”) has been qualified under the United States Trust Indenture Act of 1939, as amended (the “TIA”), (iii) the form or forms of the Securities and the final terms thereof have been duly approved or established by appropriate corporate action taken by the Company and in accordance with the terms of the Indenture, and (iv) the Securities have been duly executed, authenticated, completed, issued and delivered against payment therefor in accordance with such corporate action, the Indenture and in the manner contemplated by the Registration Statement, the Securities will thereupon be legally issued and binding obligations of the Company.
My opinions expressed above are subject to the qualifications that I express no opinion as to the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar law or judicially developed doctrine in this area (such as substantive consolidation or equitable subordination) affecting the enforcement of creditors’ rights generally, (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and (iii) public policy considerations which may limit the rights of parties to obtain certain remedies.
For purposes of the relevant opinions above, I have assumed that the Securities will have been validly issued and will be fully paid and non-assessable.
I hereby consent to the filing 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/ Stacy P. Thomas | ||||
| Stacy P. Thomas | ||||
| Assistant Secretary | ||||