EXHIBIT
10.6
___________________________________________________________________________
NOTE PURCHASE AGREEMENT
Dated as of April 7, 2008
By
and among
FORD
MOTOR COMPANY, as Issuer
,
FORD-UAW
HOLDINGS LLC, as Purchaser ,
and
3000
SCHAEFER ROAD COMPANY
FORD
EUROPEAN HOLDINGS LLC
FORD
GLOBAL TECHNOLOGIES, LLC
FORD
HOLDINGS LLC
FORD
INTERNATIONAL CAPITAL LLC
FORD
MEXICO HOLDINGS, INC.
FORD
MOTOR SERVICE COMPANY
FORD
MOTOR VEHICLE ASSURANCE COMPANY, LLC
FORD
SOUTH AMERICA HOLDINGS, LLC
FORD
TRADING COMPANY, LLC
FORD
COMPONENT SALES, L.L.C.
GRUPO
FORD, S. de R.L. de C.V.
LAND
ROVER NORTH AMERICA, INC.
VOLVO
CARS OF NORTH AMERICA, LLC,
as
Subsidiary
Guarantors
Relating
to
$3,000,000,000 AGGREGATE PRINCIPAL AMOUNT
9.50% GUARANTEED SECURED NOTE DUE JANUARY 1, 2018
___________________________________________________________________
NOTE PURCHASE AGREEMENT
Ford-UAW
Holdings LLC
15041
Commerce Drive South
Rotunda
Court #4
Dearborn,
MI 48120
Ladies
and Gentlemen:
The undersigned, FORD MOTOR COMPANY, a Delaware corporation
(the “Issuer”), and each of the entities
identified and described in Schedule I hereto (each a
"Subsidiary Guarantor" and collectively, the "Subsidiary
Guarantors"), hereby agree with you (hereinafter referred to
as "Purchaser," "you" or "your") as follows:
SECTION
1
Authorization and Issue of Notes
Prior
to the Closing Date (as hereinafter defined), the Issuer shall
have duly authorized the issue, sale and delivery of its 9.50%
Guaranteed Secured Note due January 1, 2018 in the aggregate
principal amount of $3,000,000,000 (the "Note"), to be dated
the date of issue thereof, to bear interest (computed on the
basis of a 360-day year of twelve 30-day months) from such
date at the rate of 9.50% (the “Interest Rate”)
per annum, payable semi-annually in arrears on the first day
of each January and July through maturity, commencing July 1,
2008, and to bear interest (so computed) after maturity,
whether by acceleration or otherwise, on any overdue principal
and, to the extent permitted by applicable law, on any overdue
interest, until the same shall be paid in full, at a rate per
annum equal to 1% in excess of the Interest Rate, to mature on
January 1, 2018 and to be substantially in the form of Exhibit
A. If any day on which a payment is due in respect of the Note
is not a business day, then such payment shall not be made
until the next following business day and no additional
principal or interest or other payment shall result from such
delay. For the purposes of this Agreement, the term
“business day” shall mean a day other than a
Saturday or a Sunday or a day on which banks are authorized or
obligated by law to close in either the State of New York or
the State of Michigan.
SECTION
2
Issuance of Note, Guaranty and Security
(a)
Subject to the terms and conditions herein set forth, the
Issuer hereby agrees to sell to you, and you hereby agree to
purchase from the Issuer, on the Closing Date the Note at a
price equal to 100% of the principal amount thereof. The Note
shall be endorsed with an unconditional guaranty of payment
issued by the Subsidiary Guarantors (the
“Guaranty”), in the form set forth on the reverse
side of Exhibit A hereto.
(b)
Issuer will designate the Note as Second Priority Additional
Debt in accordance with and subject to the terms of that
certain Credit Agreement dated as of December 15, 2006 among
the Issuer, the Subsidiary Borrowers from time to time parties
thereto, the banks and other financial institutions or
entities from time to time parties thereto ("Lenders"), and
JPMorgan Chase Bank, N.A., as Administrative Agent
("Administrative Agent") for the Lenders (the "Credit
Agreement") and the Loan Documents (such term and other
capitalized terms used in this Section 2(b) but not otherwise
defined in this Agreement shall have the meanings assigned to
them in the Credit Agreement). As such, payment of
the principal of and interest on the Note will be secured on a
second lien basis with the Collateral pledged by the Issuer
and the Subsidiary Guarantors to the Lenders under and in
accordance with the Credit Agreement and the Loan Documents,
including the Collateral Trust Agreement dated as of December
15, 2006 among the Issuer, the Subsidiary Guarantors and
Wilmington Trust Company, as Collateral Trustee ("Collateral
Trustee") (the "Collateral Trust Agreement"), and the Security
Agreement dated as of December 15, 2006 made by the Issuer and
the Subsidiary Guarantors in favor of the Collateral Trustee
(the "Security Agreement"). Holders of the Note
will be subject to the intercreditor provisions contained in
Section 8 of the Collateral Trust Agreement. Issuer
will provide copies of the Credit Agreement, Collateral Trust
Agreement and Security Agreement to any holder of the Note
upon the request of such holder.
SECTION
3
Closing
The
closing (the “Closing”) of the transaction
contemplated hereunder will take place at the offices of the
Issuer at 10:00 a.m., Dearborn, Michigan time, on April 7,
2008, or such other date or place as shall be mutually agreed
upon by the Subsidiary Guarantors, the Issuer and the
Purchaser. The date on which the Closing takes place is
hereinafter referred to as the “Closing
Date”. On the Closing Date the Issuer and the
Subsidiary Guarantors will deliver to you the Note registered
in your name or in the name of your nominee, such Note to be
duly executed and dated the Closing Date, together with the
Guaranty completed and duly executed, against your delivery to
the Issuer of the principal amount of the Note by wire
transfer of immediately available funds on behalf of the
Issuer to the account of Ford Investment Partnership (Account
No. 24542722) at State Street Bank and Trust Company, 2 Avenue
De Lafayette LCC 2, Boston, MA 02111-2900 (ABA No.
011000028).
SECTION
4
Representation and Warranties of the Issuer
The
Issuer represents and warrants to the Purchaser as
follows:
4.1
Corporate
Existence and Power . The Issuer has been duly
incorporated, and is validly existing as a corporation in good
standing under the laws of the State of
Delaware. The Issuer has corporate power and
authority, and has all licenses, permits, orders and other
governmental and regulatory approvals, to own or lease its
properties and conduct its business in the jurisdictions in
which such business is transacted, except for such licenses,
permits, orders and other governmental and regulatory
approvals the absence of which would not have a material
adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects
of the Issuer and its subsidiaries considered as a whole
("Material Adverse Effect").
4.2
Corporate Authority;
Binding Effect . The execution, delivery and
performance of this Agreement and the Note are within the
corporate powers of the Issuer and have been duly authorized
by all necessary corporate action on the part of the Issuer;
this Agreement has, and as of the Closing the Note will have,
been duly executed and delivered by the Issuer and as of the
Closing each will constitute the legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in
accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting the enforcement of creditors’ rights
generally and by general principles of equity.
4.3
Consents.
Etc . There is no consent, approval, authorization,
order, registration or qualification of or with any court or
any regulatory authority or other governmental body having
jurisdiction over the Issuer which is required for, and the
absence of which would affect, the valid authorization,
issuance, sale and delivery of the Note or the valid execution
and delivery by the Issuer of this Agreement, except for such
consents, approvals, authorizations, orders, registrations or
qualifications as have been, or will on the Closing Date have
been, obtained or made and are or will then be in full force
and effect.
4.4
No
Conflicts with Agreements. Etc . The Issuer is not in
violation of its certificate of incorporation or
by-laws. The Issuer is not in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it
is bound or to which any of its properties are subject, except
for defaults that would not have a Material Adverse Effect.
The execution and delivery by the Issuer of this Agreement,
the issuance and delivery of the Note, the consummation of the
transactions contemplated herein and in the Note and
compliance by the Issuer with the terms of this Agreement and
the Note (1) do not and will not result in any violation of
the certificate of incorporation or by-laws of the Issuer, and
(2) do not and will not conflict with, or result in a breach
of any of the terms or provisions of, or constitute a default
under, or, except as described in Section 2(b) hereof, result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Issuer under
(A) any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to
which the Issuer is a party or by which it is bound or to
which any of its properties are subject, (B) any existing
applicable law, rule, regulation or (C) any judgment, order or
decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the
Issuer or any of its properties, except in the case of clause
(2), for conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse
Effect.
4.5
Investment Company
. The Issuer is not and, after the application of
the proceeds of the Note and the Convertible Note will not be,
an "investment company” within the meaning of the
Investment Company Act of 1940, as amended (the "Investment
Company Act"). As used herein, “Convertible Note”
shall mean the 5.75% Senior Convertible Notes Due 2013 issued
pursuant to a Second Supplemental Indenture dated January 1,
2008 by and between the Issuer and The Bank of New York, as
Trustee.
4.6
Use
of Proceeds . The net proceeds from the issuance of the
Note will be used by the Issuer for general corporate
purposes.
4.7
No
Registration . Neither the Issuer nor any Person (as
hereinafter defined) acting on its behalf has taken or will
take any action to register or that would require registration
of the offering and sale of the Note or the Guaranty under the
Securities Act of 1933, as amended (the “Securities
Act”).
4.8
No
Brokers . The Issuer has not paid nor will it become
obligated to pay any fee or commission to any broker, finder,
investment banker or other intermediary other than The
Blackstone Group in connection with the transactions
contemplated by this Agreement. The Issuer shall, jointly and
severally with the Subsidiary Guarantors, indemnify and hold
the Purchaser harmless against any claims made by The
Blackstone Group for any such fees or
commissions.
SECTION
5
Representations and Warranties of the Subsidiary
Guarantors
Each
of the Subsidiary Guarantors represents and warrants to the
Purchaser as follows:
5.1
Existence and Power
. It has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its
organization. It has the power and authority, and
has all licenses, permits, orders and other governmental and
regulatory approvals, to own or lease its properties and
conduct its business in the jurisdictions in which such
business is transacted, except for such licenses, permits,
orders and other governmental and regulatory approvals the
absence of which would not have a Material Adverse
Effect.
5.2
Authority; Binding Effect
. The execution, delivery and performance of the Guaranty are
within its powers and it has been duly authorized by all
necessary corporate or other action on its part; at the
Closing, the Guaranty will have been duly executed and
delivered by it and will constitute its legal, valid and
binding obligations, enforceable against it in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the enforcement
of creditors’ rights generally and by general principles
of equity.
5.3
Consents,
Etc . There is no consent, approval, authorization,
order, registration or qualification of or with any court or
any regulatory authority or other governmental body having
jurisdiction over it that is required for, and the absence of
which would affect, the valid execution and delivery by it of
the Guaranty, except for such consents, approvals,
authorizations, orders, registrations or qualifications as
have been, or will on the Closing Date have been, obtained or
made and are or will then be in full force and
effect.
5.4
No Conflicts with Agreements, Etc
. It is not in violation of its organizational or constituting
documents and is not in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument
to which it is a party or by which it is bound or to which any
of its properties are subject, except for defaults that would
not have a Material Adverse Effect. The execution and delivery
by it of the Guaranty, the consummation of the transactions
contemplated herein and compliance by it with the terms of the
Guaranty (1) do not and will not result in any violation of
its organizational or constituting documents and (2) do not
and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, or,
except as provided in Section 2(b) hereof, result in the
creation or imposition of any lien, charge or encumbrance upon
any of its property or assets under (A) any contract
indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which it is a party
or by which it is bound or to which its properties are
subject, (B) any existing applicable law, rule, regulation or
(C) any judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign,
having jurisdiction over it or any of its properties, except
in the case of clause (2) for conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a
Material Adverse Effect.
5.5
Investment
Company . No Subsidiary Guarantor is an "investment
company" within the meaning of the Investment Company
Act.
5.6
No
Registration . No Subsidiary Guarantor or any Person
acting on behalf of any Subsidiary Guarantor, has taken or
will take any action to register or that would require the
registration of the offering and sale of the Note
or the Guaranty under the Securities Act.
SECTION
6
Representations and Warranties and
Covenants of the Purchaser
The Purchaser hereby represents and warrants to and agrees
with the Issuer and each Subsidiary Guarantor as
follows:
6.1
Acquisition of the Note
. The Purchaser is acquiring the Note for its account and not
with a view to or for sale in connection with any distribution
of the Note, nor with any present intention of distributing or
selling the Note, but subject nevertheless to any requirement
of law that the disposition of the Purchaser’s property
shall at all times be and remain within its control. The
Purchaser is an institutional “accredited
investor” as defined in Section 5.0l(a)(l), (2) or (3)
of Regulation D promulgated under the Securities Act. The
Purchaser acknowledges that (i) neither the Note nor the
Guaranty has been registered under the Securities Act, and
that neither the Issuer nor any Subsidiary Guarantor
contemplates filing, or is contractually or legally required
to file, any registration statement to effect such
registration; and (ii) it has been advised that the Note and
the Guaranty must be held indefinitely, unless, subject to
subsection 6.2 hereof, the Note and the Guaranty are
subsequently registered under the Securities Act or an
exemption from such registration is available.
6.2
Assignments,
Transfers and Participations .
(a) Except for a transfer from the Purchaser to the New VEBA
(as defined below), the Purchaser will not assign or transfer
all or any portion of the Note, the Guaranty or this Agreement
(or any right or interest therein) without the prior written
consent of the Issuer, unless each and all of the following
conditions have been satisfied or complied with:
(i)
no assignment or transfer of any portion of the Note having a
principal amount of less than $250,000,000 shall be made, and
any assignment or transfer of a portion of the Note in excess
thereof shall be in a principal amount of an integral multiple
of $100,000,000;
(ii) the assignment or transfer shall not result in a
violation of any applicable law, including but not limited to, the
Securities Act, any other applicable securities law or the Employee
Retirement Income Security Act of 1974, as amended
("ERISA");
(iii)
the Issuer and the Guarantor shall have received a written
agreement from the assignee or transferee to undertake on its
own behalf the representations, warranties and covenants in
this Section 6, including those in this subsection 6.2;
and
(iv)
the Issuer shall have received written notice from you of any
such assignment or transfer at least 10 business days prior to
the effective date of such assignment or transfer, together
with drafts of any certificates, opinions and agreements to be
delivered in accordance with the foregoing conditions and such
other evidence as the Issuer and each Subsidiary Guarantor may
consider necessary to establish compliance with the foregoing
conditions.
As used herein, “New VEBA” shall mean the trust
fund to be established pursuant to the terms of the Settlement
Agreement dated March 28, 2008, as amended, supplemented,
replaced or otherwise altered from time to time, between the
Issuer, the International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, and certain
class representatives, on behalf of the class of plaintiffs as
set forth therein.
(b) The Purchaser will not sell to one or more Persons
any participation in the Note without the express written consent
of the Issuer unless the participation shall not result in a
violation of any applicable law, including but not limited to, the
Securities Act, any other applicable securities laws or ERISA;
provided,
however , that
(A) any Person to whom the Purchaser sells a participation in the
Note shall not be entitled by virtue of such participation to any
rights or benefits under this Agreement, the Note or the Guaranty,
(B) the Purchaser’s obligations under this Agreement shall
remain unchanged, (C) the Purchaser shall remain solely responsible
to the other parties hereto for the performance of such
obligations, (D) the Issuer and the Subsidiary Guarantors shall
continue to deal solely and directly with the Purchaser in
connection with the Purchaser’s rights and obligations under
this Agreement, and (E) no later than January 31 of each year, the
Purchaser shall provide the Issuer with a written description of
each participation in the Note sold by Purchaser during the prior
year (it being understood that any failure to provide notice shall
not render the participation invalid).
(c) For purposes of this subsection 6.2 and elsewhere in this
Agreement, an “Affiliate” of any specified Person
shall mean any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control
with such specified Person; “Person” shall mean
any individual, corporation, partnership, joint venture,
association, joint-stock company, trust or unincorporated
organization; and “control” when used with respect
to any specified Person shall mean the power to direct the
management and policies of such Person, directly or
indirectly, whether through the ownership of voting
securities, by contract or otherwise.
(d) The Guaranty and this Agreement shall be assignable and
may be transferred to the same extent as the Note, as
permitted under this Section 6 and Section 12.4(c), and shall
not be separable from the Note, and each permitted assignee or
transferee of the Note shall enjoy the full benefits of the
Guaranty and this Agreement.
6.3
Intercreditor
Provisions. The Purchaser and any
subsequent holder or owner of the Note or any portion thereof
acknowledge that the Note and the Guaranty will be subject to,
and the Purchaser and any such holder agree to comply with and
abide by, the intercreditor provisions contained in Section 8
of the Collateral Trust Agreement and any other provision of
the Credit Agreement or Loan Documents (as defined in the
Credit Agreement) applicable to or affecting the Note by
virtue of its designation thereunder as Second Priority
Additional Debt.
SECTION
7
Closing Conditions
Your
obligation to purchase and pay for the Note shall be subject
to the performance by the Issuer and the Subsidiary Guarantors
of all of the agreements to be performed by them under this
Agreement, the Note and the Guaranty, as the case may be, and
to the satisfaction of the following further
conditions:
7.1
Opinion of
Counsel . You shall have received at the Closing an
opinion of counsel to the Issuer and the Subsidiary Guarantors
(who may be an employee of the Issuer or a Subsidiary
Guarantor) addressed to you and substantially in the form
attached hereto as Schedule II.
7.2
Representations
and Warranties of the Issuer . The representations and
warranties of the Issuer contained in Section 4 of this
Agreement shall be true and correct (to the extent qualified
by materiality or Material Adverse Effect) or true and correct
in all material respects (to the extent not so qualified) on
and as of the Closing Date, except for the representations and
warranties set forth in Section 4.3 of this Agreement, which
shall be true and correct on and as of the Closing Date, and
except to the extent such representations and warranties
expressly relate to an earlier date.
7.3
Representations
and Warranties of Subsidiary Guarantors . The
representation and warranties of each Subsidiary Guarantor
contained in Section 5 of this Agreement shall be true and
correct (to the extent qualified by materiality or Material
Adverse Effect) or true and correct in all material respects
(to the extent not so qualified) on and as of the Closing
Date, except for the representations and warranties set forth
in Section 5.3 of this Agreement, which shall be true and
correct on and as of the Closing Date, except to the extent
such representations and warranties expressly relate to an
earlier date.
7.4
No
Default . No event shall have occurred and be
continuing on the Closing Date which, with the giving of
notice or lapse of time, or both, would constitute a default
under this Agreement.
7.5
Guaranty
. The Guaranty shall have been duly completed, executed
and delivered.
7.6
Designation under
Credit Agreement . (i) The notice required by the definition
of "Permitted Second Lien Debt" in Section 1.1 of the Credit
Agreement shall have been timely given by the Issuer to the
Administrative Agent under the Credit Agreement and no objection
thereto shall have been made by the Administrative Agent; (ii) the
certification required by Section 7.2 of the Collateral Trust
Agreement designating the Note as Second Priority Additional Debt,
among other things, shall have been made by the Issuer to the
Collateral Trustee; and (iii) copies of such notice and
certification shall have been delivered to you on or prior to the
Closing Date.
7.7
Waiver of
Conditions . If the conditions specified in this Section 7
have not been fulfilled, you may waive compliance with any such
condition to such extent as you may in your sole discretion
determine. Except as so waived by you, nothing in this Section 7.7
shall operate to relieve either the Issuer or any Subsidiary
Guarantor of any of its respective obligations hereunder or to
waive any of your rights against either of them.
SECTION
8
Additional Covenants of the Issuer and the
Guarantor
Each
of the Issuer and the Subsidiary Guarantors covenant and agree
that, commencing on the Closing Date, and so long as the Note
is outstanding, it will comply with its obligations in this
Section 8.
8.1
Payment of
Principal and Interest . The Issuer will duly and
punctually pay the principal of and interest on the Note in
accordance with its terms and this Agreement.
8.2
Financial Statements
. The Issuer shall deliver to you its audited
annual financial statements and unaudited quarterly financial
statements within 15 days after the Issuer is required to file
the same with the SEC pursuant to Section 13 or Section 15(d)
of the Exchange Act (or, if the Issuer is not required to file
annual financial statements or unaudited quarterly financial
statements with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act, then within 15 days after the
Issuer would be required to file the same with the SEC
pursuant to Section 13 or Section 15(d) of the Exchange Act if
it had a security listed and registered on a national
securities exchange); provided
, that such 15-day period shall automatically be extended to
the earlier of (a) the date that is five days prior to the
date of the occurrence of any event of default (or any
comparable term) under any of the Issuer’s Existing
Notes (as defined in the Credit Agreement) as a result of the
Issuer’s failure to provide annual or quarterly
financial statements to the extent required under the related
indenture and (b) in the case of audited annual financial
statements, within 240 days after the end of the
Issuer’s fiscal year, and, in the case of unaudited
quarterly financial statements, within 220 days after the end
of the respective quarters for each of the first three
quarterly periods of each fiscal year; provided
, further ,
that such financial statements shall be deemed to be delivered
upon the filing with the SEC of the Issuer's Form 10-K or Form
10-Q for the relevant fiscal period.
8.3
Credit
Agreement Certificates . Promptly after it provides them to
the Administrative Agent in accordance with Section 6.3 of the
Credit Agreement, the Issuer shall provide you, at your address
specified in Section 12.1 hereof, with copies of the compliance and
Borrowing Base certificates it is required to deliver pursuant to
said Section 6.3.
8.4
Assignment and
Assumption . Neither the Issuer nor any Subsidiary Guarantor
shall assign, convey or otherwise transfer any of its rights or
obligations hereunder, under the Note or the Guaranty, as the case
may be, without the express written consent of holders of a
majority of the outstanding aggregate principal amount of the
Note.
8.5
Consolidations,
Mergers and Conveyances . (a) Each of the Issuer and
the Subsidiary Guarantors may consolidate with, or sell or
convey all or substantially all its assets to, or merge with
or into, (1) any entity if the Issuer or such Subsidiary
Guarantor or another Subsidiary Guarantor shall be the
continuing entity or (2) any entity existing under the laws of
(i) the United States, any state thereof, or the District of
Columbia, in the case of the Issuer, and (ii) any
jurisdiction, in the case of a Significant Guarantor (as
defined in the Credit Agreement) in connection with an asset
sale permitted under Section 7.5 of the Credit Agreement;
provided,
however , that in the case of clause (2) that is not in
connection with an asset sale that is permitted under Section
7.5 of the Credit Agreement, (x) the successor entity shall
expressly assume the due and punctual payment of the principal
of and interest on the Note, in the case of the Issuer, in
accordance with its terms and the due and punctual performance
and observance of all the covenants and conditions of this
Agreement and the Note, in the case of the Issuer, or this
Agreement and the Guaranty, in the case of a Subsidiary
Guarantor, by an instrument satisfactory to the Purchaser in
its reasonable judgment, executed and deliver
