Exhibit 10.2
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DOE
(ATV)
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FORD MOTOR COMPANY
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NOTE PURCHASE AGREEMENT made as of September 16, 2009, by and among the
FEDERAL FINANCING BANK (" FFB "), a body corporate
and instrumentality of the United States of America, FORD MOTOR
COMPANY (the " Borrower "), a corporation organized and
existing under the laws of the State of Delaware, and the
SECRETARY OF ENERGY (the " Secretary ").
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WHEREAS, the Secretary is authorized, pursuant to the
Program Authority (as hereinafter defined), to carry out a program
to provide for loans that meet the requirements of the Program
Authority; and
WHEREAS, FFB is authorized, pursuant to the Program
Authority, to make loans under the Secretary's program;
and
WHEREAS, FFB has entered into the Program Financing
Agreement (as hereinafter defined) with the Secretary setting forth
the commitment of FFB to enter into agreements to purchase notes
issued by entities designated by the Secretary when the Secretary
affirms that (i) the Secretary is obligated to reimburse FFB under
circumstances and in amounts as provided therein in connection with
loans evidenced by those notes, and (ii) such reimbursement
obligations are made with the full faith and credit of the United
States, and the commitment of the Secretary to make such
affirmations; and
WHEREAS, pursuant to the Program Financing Agreement, the
Secretary has delivered to FFB and the Borrower a Designation
Notice (as hereinafter defined) designating the Borrower to be a
"Borrower" for purposes of the Program Financing Agreement;
and
WHEREAS, FFB is entering into this Note Purchase
Agreement, in fulfillment of its commitment under the Program
Financing Agreement, setting out, among other things, FFB's
agreement to purchase the Notes (as hereinafter defined) to be
issued by the Borrower, when the terms and conditions specified
herein have been satisfied, as hereinafter provided.
NOTE PURCHASE AGREEMENT - page
1
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DOE
(ATV)
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FORD MOTOR COMPANY
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NOW, THEREFORE, for and in consideration of the mutual
agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, FFB, the Secretary, and the Borrower agree as
follows:
ARTICLE 1
DEFINITIONS AND RULES OF
INTERPRETATION
Section
1.1 Definitions .
As used in this Agreement, the following terms
shall have the respective meanings specified in this section 1.1,
unless the context clearly requires otherwise.
" Advance " shall mean an advance of
funds made by FFB under any Note in accordance with the provisions
of article 7 of this Agreement.
" Advance Identifier " shall mean, for
each Advance, the particular sequence of letters and numbers
constituting the Note Identifier plus the particular sequence of
additional numbers assigned by FFB to the respective Advance in the
interest rate confirmation notice relating to such Advance
delivered by FFB in accordance with section 7.7 of this
Agreement.
" Advance Request " shall mean a letter
from the Borrower requesting an Advance under any Note, in the form
of letter attached as Exhibit A to this
Agreement.
" Advance Request Approval Notice " shall
mean the written notice from the Department located at the end of
an Advance Request advising FFB that such Advance Request has been
approved by or on behalf of the Secretary.
" Borrower Instruments " shall have the
meaning specified in section 3.2.1 of this Agreement.
NOTE PURCHASE AGREEMENT - page
2
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DOE
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FORD MOTOR COMPANY
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" Business Day " shall mean any day on
which FFB and the Federal Reserve Bank of New York are both open
for business.
" Certificate Specifying Authorized Borrower
Officials " shall mean a certificate of the Borrower specifying
the names and titles of those officials of the Borrower who are
authorized to execute and deliver from time to time Advance
Requests on behalf of the Borrower, and containing the original
signature of each of those officials, substantially in the form of
the Certificate Specifying Authorized Borrower Officials attached
as Exhibit B to this Agreement.
" Certificate Specifying Authorized
Department Officials " shall mean a certificate specifying the
names and titles of those officials of the Department who are
authorized to execute and deliver Advance Request Approval Notices
from time to time on behalf of the Secretary and setting out the
original signature of each of those authorized officials, and
specifying the name and title of those officials of the Department
who are authorized to confirm telephonically the authenticity of
the Advance Request Approval Notices from time to time on behalf of
the Secretary and setting out the telephone number of each of those
authorized officials, in the form of the Certificate Specifying
Authorized Department Officials attached as Annex 1 to the Program
Financing Agreement.
" Department " shall mean the Department
of Energy.
" Designation Notice " shall mean,
generally, a notice from the Secretary to FFB and the particular
entity identified therein as the respective "Borrower," designating
that entity to be a "Borrower" for purposes of the Program
Financing Agreement, in the form of notice that is attached as
Annex 2 to the Program Financing Agreement; and " the
Designation Notice " shall mean the particular Designation
Notice delivered by the Secretary to FFB and the Borrower
designating the Borrower to be a "Borrower" for purposes of the
Program Financing Agreement.
" Governmental Approval " shall mean any
approval, consent, authorization, license, permit, order,
certificate, qualification, waiver, exemption, or variance, or any
other action of a similar nature, of or by a Governmental Authority
having jurisdiction over the Borrower or any of its
properties.
NOTE PURCHASE AGREEMENT - page 3
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DOE
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FORD MOTOR COMPANY
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" Governmental Authority " shall mean any
federal, state, county, municipal, or regional authority, or any
other entity of a similar nature, exercising any executive,
legislative, judicial, regulatory, or administrative function of
government.
" Governmental Judgment " shall mean any
judgment, order, decision, or decree, or any action of a similar
nature, of or by a Governmental Authority having jurisdiction over
the Borrower or any of its properties.
" Governmental Registration " shall mean
any registration, filing, declaration, or notice, or any other
action of a similar nature, with or to a Governmental Authority
having jurisdiction over the Borrower or any of its
properties.
" Governmental Rule " shall mean any
statute, law, rule, regulation, code, or ordinance of a
Governmental Authority having jurisdiction over the Borrower or any
of its properties.
" Holder " shall mean, with respect to
any Note, FFB, for so long as it shall be the holder of such Note,
and any successor or assignee of FFB, for so long as such successor
or assignee shall be the holder of such Note.
" Loan Commitment Amount " shall mean
$5,937,000,000.
" Material Adverse Effect on the Borrower
" shall mean any material adverse effect on the financial
condition, operations, business or prospects of the Borrower or any
affiliated guarantor of the Borrower or the ability of the Borrower
to perform its obligations under this Agreement or any of the other
Borrower Instruments.
" Note " shall mean any future advance
promissory note issued by the Borrower payable to FFB, in the form
of note that is attached as Exhibit C to this Agreement, as
any such Note may be amended, supplemented, and restated from time
to time in accordance with its terms.
NOTE PURCHASE AGREEMENT - page 4
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DOE
(ATV)
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FORD MOTOR COMPANY
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" Note Identifier " shall mean, with
respect to each Note, the particular sequence of letters and
numbers assigned by FFB to the respective Note in the Principal
Instruments acceptance notice relating to such Note delivered by
FFB in accordance with section 5.1 of this Agreement.
" Opinion of Borrower's Counsel re: Borrower
Instruments " shall mean an opinion of counsel from counsel to
the Borrower, substantially in the form of opinion that is attached
as Exhibit D to this Agreement.
" Opinion of Secretary's Counsel re:
Secretary's Affirmation " shall mean an opinion of counsel from
counsel to the Secretary, substantially in the form of opinion that
is attached as Exhibit E to this Agreement.
" Other Debt Obligation " shall mean any
note or any other evidence of an obligation for borrowed money of a
similar nature, made or issued by the Borrower (other than the
Notes purchased by FFB under this Agreement), or any mortgage,
indenture, deed of trust or loan agreement with respect thereto to
which the Borrower is a party or by which the Borrower or any of
its properties is bound (other than this Agreement).
" Person " shall mean any individual,
corporation, partnership, joint venture, association, joint-stock
company, trust, trust company, unincorporated organization or
Governmental Authority.
" Principal Instruments " shall have the
meaning specified in section 4.2 of this Agreement.
" Program Authority " shall mean section
136 of the Energy Independence and Security Act of 2007 (Pub. L.
No. 110-140, 121 Stat. 1492, 1514), as amended from time to time,
including as amended by section 129 of Division A of the
Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009 (Pub. L. No. 110-329, 122 Stat. 3574,
3578).
NOTE PURCHASE AGREEMENT - page 5
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DOE
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FORD MOTOR COMPANY
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" Program Financing Commitment Amount "
shall have the meaning specified in section 1.1 of the Program
Financing Agreement.
" Program Financing Agreement " shall
mean the Program Financing Agreement dated as of September 16,
2009, between FFB and the Secretary, as such agreement may be
amended, supplemented, and restated from time to time in accordance
with its terms.
" Requested Advance Amount " shall have
the meaning specified in section 7.3.1(a)(2) of this
Agreement.
" Requested Advance Date " shall have the
meaning specified in section 7.3.1(a)(3) of this
Agreement.
" Secretary's Affirmation " shall mean
the affirmation of the Note issued by the Secretary, in the form of
affirmation that is attached as Exhibit F to this
Agreement.
" Secretary's Certificate " shall mean
the certificate relating to the Secretary's Affirmation and other
matters, in the form of certificate that is attached as Exhibit
G to this Agreement.
" Secretary's Instruments " shall have
the meaning specified in section 3.3.1 this Agreement.
" this Agreement " shall mean this Note
Purchase Agreement among FFB, the Secretary, and the
Borrower.
" Uncontrollable Cause " shall mean an
unforeseeable cause beyond the control and without the fault of
FFB, being: act of God, fire, flood, severe weather,
epidemic, quarantine restriction, explosion, sabotage, act of war,
act of terrorism, riot, civil commotion, lapse of the statutory
authority of the United States Department of the Treasury to raise
cash through the issuance of Treasury debt instruments, disruption
or failure of the Treasury Financial Communications System, closure
of the Federal Government, or an unforeseen or unscheduled closure
or evacuation of the FFB offices.
NOTE PURCHASE AGREEMENT - page 6
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DOE
(ATV)
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FORD MOTOR COMPANY
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Section 1.2 Rules of Interpretation
.
Unless the context shall otherwise indicate, the
terms defined in section 1.1 of this Agreement shall include the
plural as well as the singular and the singular as well as the
plural. The words "herein," "hereof," and "hereto," and
words of similar import, refer to this Agreement as a
whole.
ARTICLE 2
FFB COMMITMENT TO PURCHASE THE
NOTE
Subject to the terms and conditions of this
Agreement, FFB agrees to purchase the Notes that are offered by the
Borrower to FFB for purchase under this Agreement.
ARTICLE 3
COMMITMENT
CONDITIONS
FFB shall be under no obligation to purchase the
Notes under this Agreement unless and until each of the conditions
specified in this article 3 has been satisfied.
Section 3.1 Commitment Amount
Limits .
3.1.1 Loan Commitment Amount
. The aggregate maximum principal amount of the Notes
that are offered for purchase shall not exceed the Loan Commitment
Amount.
3.1.2 Program Financing
Commitment Amount . At the time that each Note is
offered to FFB for purchase under this Agreement, the aggregate
maximum principal amount of the Notes, when added to the aggregate
maximum principal amount of all other notes that have been issued
by entities that have been designated by the Secretary in
Designation Notices to be "Borrowers" for purposes of the Program
Financing Agreement and in connection with which the Secretary has
undertaken certain reimbursement obligations pursuant to the
Program Authority, shall not exceed the Program Financing
Commitment Amount.
NOTE PURCHASE AGREEMENT - page 7
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DOE
(ATV)
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FORD MOTOR COMPANY
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Section 3.2 Borrower
Instruments .
3.2.1 Borrower Instruments
. FFB shall have received from the Borrower the
following instruments (such instruments being, collectively, the "
Borrower Instruments "):
(a) an original counterpart of this Agreement,
duly executed by the Borrower; and
(b) each original Note described in the
Designation Notice, with all of the blanks on page 1 of each Note
filled in with information consistent with the information set out
in the Designation Notice, and duly executed by the
Borrower.
3.2.2 Opinion of Borrower's
Counsel re: Borrower Instruments . FFB shall have
received from the Borrower an Opinion of Borrower's Counsel re:
Borrower Instruments.
3.2.3 Certificate Specifying
Authorized Borrower Officials . FFB shall have
received from the Borrower a completed and signed Certificate
Specifying Authorized Borrower Officials.
Section 3.3 Secretary's
Instruments .
3.3.1 Secretary's Instruments
. FFB shall have received from the Secretary the
following instruments (such instruments being, collectively, the "
Secretary's Instruments "):
(a) an original counterpart of this Agreement,
duly executed by or on behalf of the Secretary;
(b) the original Secretary's Affirmation
relating to the Notes, duly executed by or on behalf of the
Secretary; and
NOTE PURCHASE AGREEMENT - page 8
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DOE
(ATV)
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FORD MOTOR COMPANY
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(c) an original Secretary's Certificate relating
to the Secretary's Affirmation and other matters, duly executed by
or on behalf of the Secretary.
3.3.2 Opinion of Secretary's
Counsel re: Secretary's Affirmation . FFB shall have
received an Opinion of Secretary's Counsel re: Secretary's
Affirmation.
Section 3.4 Conditions Specified in
Other Agreements .
Each of the conditions specified in the Program
Financing Agreement as being conditions to purchasing the Note
shall have been satisfied, or waived by both FFB and the
Secretary.
ARTICLE 4
OFFER OF THE NOTES FOR
PURCHASE
The Notes that are to be offered to FFB for
purchase under this Agreement shall be offered in accordance with
the procedures described in this article 4.
Section 4.1 Delivery of Borrower
Instruments to the Secretary .
The Borrower shall deliver to the Secretary, for
redelivery to FFB, the following:
(a) all of the Borrower Instruments, each duly
executed by the Borrower;
(b) an Opinion of Borrower's Counsel re:
Borrower Instruments; and
(c) a completed and signed Certificate
Specifying Authorized Borrower Officials.
Section 4.2 Delivery of Principal
Instruments by the Secretary to FFB .
The Secretary shall deliver to FFB all of the
following instruments (collectively being the " Principal
Instruments "):
NOTE PURCHASE AGREEMENT - page 9
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DOE
(ATV)
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FORD MOTOR COMPANY
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(a) all of the instruments described in section
4.1;
(b) all of the Secretary's Instruments, each
duly executed by the Secretary; and
(c) an Opinion of Secretary's Counsel re:
Secretary's Affirmation.
ARTICLE 5
PURCHASE OF THE NOTES BY
FFB
Section 5.1 Acceptance or Rejection of
Principal Instruments .
Within 5 Business Days after delivery to FFB of
the Principal Instruments relating to the Notes that are offered
for purchase under this Agreement, FFB shall deliver by facsimile
transmission (fax) to the Department one of the
following:
(a) an acceptance notice, which notice
shall:
(1) state that the Principal Instruments meet
the terms and conditions detailed in article 3 of this Agreement,
or are otherwise acceptable to FFB; and
(2) assign a Note Identifier to each Note for
use by the Borrower and the Department in all communications to FFB
making reference to the respective Note; or
(b) a rejection notice, which notice shall state
that one or more of the Principal Instruments does not meet the
terms and conditions of this Agreement and specify how such
instrument or instruments does not meet the terms and conditions of
this Agreement.
Section 5.2 Purchase
.
FFB shall not be deemed to have accepted the
Notes offered for purchase under this Agreement until such time as
FFB shall have delivered an acceptance notice accepting the
Principal Instruments relating to the Notes; provided ,
however , that
