<PAGE>
EXHIBIT 1.1
FORD CREDIT AUTO RECEIVABLES TWO LLC
ASSET-BACKED SECURITIES
UNDERWRITING AGREEMENT
[_________], 200[_]
Each of the Underwriters party to
this agreement,
as an Underwriter and as a Representative
of the other Underwriters named in
the Terms Annex
Ladies and Gentlemen:
1.
Introduction. Ford Credit Auto Receivables Two LLC, a Delaware
limited
liability company (the "Depositor"), formed under the Amended and
Restated
Certificate of Formation of Ford Credit Auto Receivables Two LLC
(such
certificate, the "Certificate of Formation") and operating pursuant
to an
Amended and Restated Limited Liability Company Agreement, dated as
of March 1,
2001, executed by Ford Credit, as sole member (such Agreement, the
"Limited
Liability Company Agreement"), proposes to sell the notes (the
"Notes")
described in the Terms Annex (the "Terms Annex") that is attached
as Annex A and
incorporated into and made part of this agreement (this agreement
including the
Terms Annex, this "Agreement") through the representative or
representatives (in
either case, the "Representatives") of the underwriters signing
this Agreement
(the "Underwriters").
The Notes will be issued by a Delaware statutory trust (the
"Trust")
identified in the Terms Annex and established under a trust
agreement (the
"Trust Agreement") between the Depositor and an owner trustee (the
"Owner
Trustee"), and will be secured by a pool of motor vehicle retail
installment
sale contracts for new and used automobiles and trucks (the
"Receivables") and
certain other property of the Trust. The Notes will be issued
pursuant to an
indenture (the "Indenture") between the Trust and an indenture
trustee (the
"Indenture Trustee").
Ford Motor Credit Company, a Delaware corporation ("Ford Credit")
will
sell the Receivables to the Depositor pursuant to a purchase
agreement (the
"Purchase Agreement") and the Depositor will sell the Receivables
to the Trust
pursuant to a sale and servicing agreement (the "Sale and Servicing
Agreement").
Ford Credit (in such capacity, the "Servicer") will service the
Receivables on
behalf of the Trust pursuant to the Sale and Servicing Agreement.
Ford Credit
will also act as administrator for the Trust pursuant to an
administration
agreement (the "Administration Agreement") by and among Ford
Credit, the Trust
and the Indenture Trustee.
<PAGE>
In order to perfect the security interest of the Indenture Trustee
in
certain accounts, the Trust, the Indenture Trustee and the
financial institution
acting as the securities intermediary will enter into an account
control
agreement (the "Control Agreement").
The Receivables pay interest at a fixed rate. If any of the Notes
are
issued as floating rate notes, the Trust may enter into one or more
interest
rate swap or cap agreements (each, an "Interest Rate Swap") to
hedge its
interest rate risk.
Ford Credit and the Representatives have entered into an
indemnification agreement (the "Indemnification Agreement").
The Trust Agreement, the Purchase Agreement, the Sale and
Servicing
Agreement, the Indenture, the Administration Agreement, the Control
Agreement
and the Interest Rate Swaps (if any) are collectively called the
"Basic
Documents." The Basic
Documents, the Indemnification Agreement and this
Agreement are collectively called the "Transaction Documents."
The Depositor has prepared and filed with the Securities and
Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended (the
"Act") and the rules and regulations of the Commission under the
Act (the "Rules
and Regulations"), a registration statement on Form S-3 (having the
registration
number stated in the Terms Annex), including a form of prospectus
and all
amendments that are required as of the date of this Agreement
relating to the
Notes that are required to be registered with the Commission (the
"Publicly
Registered Notes") and the offering of notes from time to time in
accordance
with Rule 415 under the Act. The registration statement, as
amended, has been
declared effective by the Commission. Such registration statement,
as amended at
the time of effectiveness, including all material incorporated by
reference
therein, is referred to in this Agreement as the "Registration
Statement." The
Depositor also has filed with, or will file with, the Commission
pursuant to
Rule 424(b) ("Rule 424(b)") under the Act a prospectus supplement
relating to
the Notes (the "Prospectus Supplement"). The prospectus relating to
the Notes in
the form first required to be filed to satisfy the condition set
forth in Rule
172(c) under the Act is referred to as the "Base Prospectus", and
the Base
Prospectus as supplemented by the Prospectus Supplement required to
be filed to
satisfy the condition set forth in Rule 172(c) under the Act is
referred to as
the "Prospectus." The Depositor also has prepared an offering
memorandum (an
"Offering Memorandum") relating to the Class A-1 Notes exempt from
registration
by Section 3(a)(3) of the Act ("Exempt Notes", and the Exempt Notes
together
with the Publicly Registered Notes, the "Underwritten Notes"). Any
reference in
this Agreement to the Registration Statement, any preliminary
prospectus used in
connection with the offering of the Notes described in the Terms
Annex (the
"Preliminary Prospectus"), preliminary offering memorandum relating
to the
Exempt Notes (the "Preliminary Offering Memorandum"), the
Prospectus or the
Offering Memorandum will be deemed to refer to and include any
exhibits thereto
and any documents incorporated by reference therein, as of the
effective date of
the Registration Statement or the date of such Preliminary
Prospectus,
Preliminary Offering Memorandum, Prospectus or Offering Memorandum,
as the case
may be.
2
<PAGE>
At or prior to the time that the Representatives first sold the
Notes
to investors, which time will be specified in the Terms Annex (such
time, the
"Time of Sale"), the Depositor had prepared the Preliminary
Prospectus and the
information (including any "free-writing prospectus," as defined
pursuant to
Rule 405 under the Act (a "Free Writing Prospectus")) listed in the
Terms Annex
under "Time of Sale Information" (collectively, the "Time of Sale
Information").
If, subsequent to the date of this Agreement, the Depositor and
the
Representatives determine that such information included an untrue
statement of
material fact or omitted to state a material fact necessary in
order to make the
statements therein, in the light of the circumstances under which
they were
made, not misleading and the Representatives advise the Depositor
that they have
reformed the purchase contracts with investors of the Notes, then
"Time of Sale
Information" will refer to the information available to purchasers
at the time
of entry into the first reformed purchase contract, including any
information
that corrects such material misstatements or omissions (such new
information,
the "Corrective Information") and the Terms Annex will be deemed to
be amended
to include such Corrective Information in the Time of Sale
Information.
2.
Representations and Warranties of the Depositor. The Depositor
represents and warrants to and agrees with the Underwriters that,
as of the date
of this Underwriting Agreement:
(a) Registration Statement and Prospectus. The Registration
Statement
has been declared effective by the Commission under the Act; no
stop order
suspending the effectiveness of the Registration Statement has been
issued by
the Commission and no proceeding for that purpose has been
instituted or, to the
knowledge of the Depositor, threatened by the Commission, and the
Registration
Statement and the Prospectus and any amendment thereto, at the time
the
Registration Statement became effective complied, and as of the
date of the
Prospectus Supplement will comply, in all material respects with
the Act and the
Registration Statement did not at the time the Registration
Statement became
effective and will not on the Closing Date contain any untrue
statement of a
material fact or omit to state any material fact required to be
stated therein
or necessary in order to make the statements therein, in the light
of the
circumstances under which they were made, not misleading; and as of
the date of
the Prospectus and any amendment or supplement thereto and on the
date of this
Agreement, the Prospectus will not contain any untrue statement of
a material
fact or omit to state a material fact required to be stated therein
or necessary
in order to make the statements therein, in the light of the
circumstances under
which they were made, not misleading; provided, that the Depositor
makes no
representation and warranty with respect to any statements or
omissions made in
reliance upon and in conformity with information relating to any
Underwriter
furnished to the Depositor in writing by such Underwriter through
the
Representatives expressly for use in the Registration Statement and
the
Prospectus and any amendment or supplement thereto; and the
conditions to the
use by the Depositor of a registration statement on Form S-3 under
the Act, as
set forth in the General Instructions to Form S-3, have been
satisfied with
respect to the Registration Statement and the Prospectus. When the
Indenture is
executed by all the parties to the Indenture, it will conform in
all material
respects with
3
<PAGE>
the Trust Indenture Act of 1939, as amended (the "TIA") and at all
times
thereafter will be duly qualified under the TIA.
(b) Time of Sale Information. The Time of Sale Information, at
the
Time of Sale did not, and at the Closing Date will not, contain any
untrue
statement of a material fact or omit to state a material fact
necessary in order
to make the statements therein, in the light of the circumstances
under which
they were made, not misleading; provided that the Depositor makes
no
representation and warranty with respect to any statements or
omissions made in
reliance upon and in conformity with information furnished to the
Depositor by
an Underwriter through the Representatives expressly for use in
such Time of
Sale Information, provided that if subsequent to the Time of Sale
but prior to
or on the Closing Date the Depositor and the Representatives
determine that the
Time of Sale Information included an untrue statement of material
fact or
omitted to state a material fact necessary to make the statements
therein in
light of the circumstances under which they were made not
misleading, for
purposes of this paragraph as it refers to the Closing Date, Time
of Sale
Information will include information available to purchasers on the
Closing Date
including Corrective Information.
(c) Trust Free Writing Prospectus. Other than the Preliminary
Prospectus and the Prospectus, the Depositor (including its agents
and
representatives other than the Underwriters in their capacity as
such) has not
prepared or authorized, and will not prepare or authorize any
"written
communication" (as defined in Rule 405 under the Act) that
constitutes an offer
to sell or solicitation of an offer to buy the Notes other than the
documents,
if any, listed under "Time of Sale Information" in the Terms Annex
and other
written communication approved by the Representatives. Each such
Trust Free
Writing Prospectus complied in all material respects with the Act,
has been
filed in accordance with Section 8 (to the extent required by Rule
433 under the
Act) and, when taken together with the Preliminary Prospectus, such
Trust Free
Writing Prospectus, did not at the Time of Sale, and at the Closing
Date will
not, contain any untrue statements of a material fact or omit to
state a
material fact necessary in order to make the statements therein, in
the light of
the circumstances under which they were made, not misleading;
provided that the
Depositor makes no representation and warranty with respect to any
statements or
omissions made in reliance upon and in conformity with information
furnished to
the Depositor by an Underwriter through the Representatives
expressly for use in
such Trust Free Writing Prospectus.
(d) Exempt Notes. The Exempt Notes specified in the Terms Annex
(if
any) constitute exempt securities under Section 3(a)(3) of the Act,
and
registration of the Exempt Notes under the Act is not required in
connection
with their offer, issuance, sale or delivery.
(e)
Documents Incorporated by Reference. Other than with respect to
any Derived Information (as to which the Depositor makes no
representation) the
documents incorporated by reference in the Prospectus, when they
were filed with
the Commission, conformed in all material respects to the
requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations
thereunder (collectively, the "Exchange Act"); and any further
documents so
filed and incorporated
4
<PAGE>
by reference in the Prospectus, when such documents are filed with
the
Commission, will conform in all material respects to the
requirements of the
Exchange Act and the rules and regulations thereunder.
(f) Organization and Qualification. The Depositor is duly
organized
and validly existing as a limited liability company in good
standing under the
laws of the State of Delaware. The Depositor is qualified as a
foreign limited
liability company in good standing and has obtained all necessary
licenses and
approvals in all jurisdictions in which the ownership or lease of
its properties
or the conduct of its activities requires such qualification,
license or
approval, unless the failure to obtain such qualifications,
licenses or
approvals would not reasonably be expected to have a material
adverse effect on
the Depositor's ability to perform its obligations under the
Transaction
Documents to which it is a party.
(g) No Conflicts and No Violation. The consummation of the
transactions contemplated by the Transaction Documents to which the
Depositor is
a party and the fulfillment of the terms of the Transaction
Documents to which
the Depositor is a party will not (i) conflict with or result in a
breach of the
terms or provisions of, or constitute a default under any
indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or
instrument
under which the Depositor is a debtor or guarantor, (ii) result in
the creation
or imposition of any lien, charge or encumbrance upon any of the
properties or
assets of the Depositor pursuant to the terms of any such
indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or
instrument
(other than the Sale and Servicing Agreement), (iii) violate the
Certificate of
Formation or Limited Liability Company Agreement, or (iv) violate
any law or, to
the Depositor's knowledge, any order, rule or regulation applicable
to the
Depositor of any court or of any federal or state regulatory
body,
administrative agency or other governmental instrumentality having
jurisdiction
over the Depositor or its properties, in each case which conflict,
breach,
default, lien, or violation would reasonably be expected to have a
material
adverse effect on the Depositor's ability to perform its
obligations under the
Transaction Documents.
(h) Power, Authorization and Enforceability. The Depositor has
the
power and authority to execute deliver and perform the terms of
each of the
Transaction Documents to which it is a party. The Depositor has
authorized the
execution, delivery and performance of the terms of this Agreement
and on the
Closing Date, the other Transaction Documents to which the
Depositor will be a
party will have been duly authorized, executed and delivered by the
Depositor.
Each of the Transaction Documents to which the Depositor will be a
party is the
legal, valid and binding obligation of the Depositor enforceable
against the
Depositor, except as may be limited by insolvency, bankruptcy,
reorganization or
other laws relating to the enforcement of creditors' rights or by
general
equitable principles.
(i) Conformity of Transaction Documents. The Transaction
Documents
will conform to their descriptions in the Prospectus and in the
Offering
Memorandum in all material respects.
5
<PAGE>
(j) Enforceability of Notes. On the Closing Date, the Notes will
have
been duly executed, issued and delivered, and when authenticated by
the
Indenture Trustee and paid for by the Underwriters in accordance
with this
Agreement, will constitute valid and binding obligations of the
Trust entitled to the benefits provided by the Indenture.
(k) Schedule of Receivables. The Schedule of Receivables to be
delivered by Ford Credit as sponsor under the Purchase Agreement
will be true
and correct in all material respects as of the date specified in
the Schedule of
Receivables.
(l) Representations and Warranties in the Basic Documents. The
representations and warranties of the Depositor in the Basic
Documents to which
it will be a party will be true and correct in all material
respects as of the
date specified.
(m) Ineligible Issuer. The Depositor is not, and on the date on
which
the first bona fide offer of the Notes is made will not be, an
"ineligible
issuer", as defined in Rule 405 under the Act.
3.
Purchase, Sale, and Delivery of the Notes. On the Closing Date, on
the
basis of the representations, warranties, and agreements contained
in this
Agreement, but subject to the terms and conditions set forth in
this Agreement,
the Depositor agrees to sell to the Underwriters, and the
Underwriters agree,
severally and not jointly, to purchase from the Depositor, the
respective
principal amounts of the Notes set forth opposite such
Underwriter's name in the
Terms Annex. The Notes will be purchased by the Underwriters at the
purchase
prices set forth in the Terms Annex.
Payment of the Notes will be made to the Depositor or to its order
by
wire transfer of immediately available funds at 10:00 a.m., New
York City time,
on the closing date specified in the Terms Annex (the "Closing
Date") or at such
other time not later than seven (7) full Business Days after such
specified
closing date as the Representatives and the Depositor may
determine.
Payment for the Exempt Notes will be made against delivery to
Ford
Financial Services, Inc. ("Ford Financial") at the office of
Skadden, Arps,
Slate, Meagher & Flom LLP at 9:00 a.m., New York time, on the
Closing Date, and
payment for the Publicly Registered Notes will be made against
delivery to the
Representatives, for the account of the Underwriters, at the office
of Skadden,
Arps, Slate, Meagher & Flom LLP on the Closing Date. Each of
the Notes to be so
delivered will be initially represented by one or more notes
registered in the
name of Cede & Co., the nominee of The Depository Trust Company
("DTC"). The
interests of beneficial owners of the Notes will be represented by
book entries
on the records of DTC and its participating members.
4.
Offering by Underwriters. The Depositor understands that the
Underwriters intend to offer the Publicly Registered Notes for sale
to the
public (which may include selected dealers) upon the terms set
forth in the
Prospectus and that Ford Financial
6
<PAGE>
intends to offer the Exempt Notes (if any) for sale to
institutional investors
upon the terms set forth in the Offering Memorandum.
5.
Covenants of the Depositor. The Depositor covenants and agrees with
the
Underwriters:
(a) Preparation of Offering Documents. Immediately following
the
execution of this Agreement, to prepare a prospectus supplement and
an Offering
Memorandum, each setting forth such information from the Terms
Annex and such
other information as the Depositor deems appropriate.
(b) Filing of Prospectus and any Trust Free Writing Prospectus.
If
required, to transmit the Prospectus to the Commission within the
applicable
time period prescribed for such filings under the Rules and
Regulations by a
means reasonably calculated to result in a timely filing with the
Commission
pursuant to Rule 424(b) and subject to Section 8, file any Trust
Free Writing
Prospectuses to the extent required by Rule 433 under the Act.
(c) Delivery of Proposed Amendment or Supplement. Prior to the
Closing
Date, to furnish the Representatives with a copy of any proposed
amendment or
supplement to the Registration Statement or the Prospectus and to
give the
Representatives reasonable opportunity to review such amendment or
supplement
before it is filed.
(d) Notice to the Representatives. Prior to the Closing Date,
to
advise the Representatives promptly (i) when any amendment to the
Registration
Statement or supplement to the Prospectus is filed or becomes
effective, (ii) of
any request by the Commission for any amendment to the Registration
Statement or
any supplement to the Prospectus, (iii) of any stop order issued by
the
Commission suspending the effectiveness of the Registration
Statement or the
initiation or threat of any proceeding for that purpose, and (iv)
of the receipt
of any notification with respect to any suspension of the
qualification of the
Underwritten Notes for offer and sale in any jurisdiction or the
initiation or
threat of any proceeding for such purpose; and to use its best
efforts to
prevent the issuance of any such stop order or notification and, if
issued, to
promptly use its best efforts to obtain its withdrawal.
(e) Blue Sky Compliance. To endeavor to qualify the Underwritten
Notes
for offer and sale under the securities laws of such states as
the
Representatives may reasonably request and to continue such
qualifications in
effect so long as necessary under such laws for the distribution of
such
Underwritten Notes, provided that the Depositor will not be
required to qualify
as a foreign limited liability company to do business, or to file a
general
consent to service of process in any jurisdiction, and provided
further that the
expense of maintaining any such qualification more than one year
from the
Closing Date with respect to the Publicly Registered Notes will be
at the
Representatives' expense and the expense of maintaining any such
qualification
with respect to the Exempt Notes will be at the expense of the
underwriter of
the Exempt Notes.
7
<PAGE>
(f) Delivery of Prospectus and Offering Memorandum. To furnish
the
Underwriters with copies of the Prospectus and the Offering
Memorandum as
amended or supplemented in such quantities as the Representatives
may reasonably
request prior to the Closing Date. If the delivery of a prospectus
or offering
document is required by law in connection with sales of any
Underwritten Notes
in the six-month period following the Closing Date, and either (i)
an event has
occurred as a result of which the Prospectus or the Offering
Memorandum would
include an untrue statement of a material fact or omit to state a
material fact
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading, or (ii)
for any other
reason it is necessary during such same period to amend or
supplement the
Prospectus or the Offering Memorandum as amended or supplemented,
to notify the
Representatives and to prepare and furnish to the Representatives
as the
Representatives may from time to time reasonably request an
amendment or a
supplement to the Prospectus or the Offering Memorandum that will
correct such
statement or omission or effect such compliance. If an Underwriter
is required
by law to deliver a prospectus or other offering document in
connection with
sales of any Underwritten Notes at any time six months or more
after the Closing
Date, upon the Representatives' request, but at the expense of such
Underwriter,
the Depositor will prepare and deliver to such Underwriter as many
copies as the
Representatives may reasonably request of an amended or
supplemented prospectus
or offering document complying with the Act.
(g) Earnings Statement. To make generally available to Noteholders
as
soon as practicable, but in any event no later than eighteen months
after the
Closing Date, an earnings statement for the Trust complying with
Rule 158 under
the Act and covering a period of at least twelve consecutive months
beginning
after the Closing Date; provided that this covenant may be
satisfied by posting
the monthly investor report for the Trust on a publicly available
website.
(h) Payment of Costs and Expenses. To pay or cause to be paid
the
following costs and expenses incident to the performance of its
obligations
hereunder: (i) the Commission's filing fees with respect to the
Publicly
Registered Notes; (ii) all fees of any rating agencies rating the
Notes; (iii)
all fees and expenses of the Indenture Trustee and the Owner
Trustee; (iv) all
reasonable fees and expenses of counsel to the Indenture Trustee;
(v) all
reasonable fees and expenses of counsel to the Owner Trustee; (vi)
all fees and
expenses of the independent accountants relating to the letter
referred to in
Section 6(a); (vii) all fees and expenses of accountants incurred
in connection
with the delivery of any accountants' or auditors' reports required
pursuant to
the Indenture or the Sale and Servicing Agreement; (viii) the cost
of printing
any preliminary and final prospectuses and any preliminary and
final offering
memoranda provided to investors (including any amendments and
supplements
thereto required within six months from the Closing Date pursuant
to Section
5(f)) relating to the Notes and the Registration Statement; and
(ix) any other
fees and expenses incurred in connection with the performance of
its obligations
hereunder.
The Underwriters will pay the following costs and expenses incident
to
the performance of their obligations under this Agreement: (i) all
Blue Sky fees
and expenses as well as reasonable fees and expenses of counsel in
connection
with state securities law qualifications and any legal investment
surveys; and
(ii) the reasonable fees and expenses of counsel to the
Underwriters. Except as
provided in this
8
<PAGE>
subsection (h) and Section 10, the Underwriters will pay all their
own costs and
expenses, including the cost of printing any agreement among
underwriters,
transfer taxes on resale of the Underwritten Notes by the
Underwriters, and any
advertising expenses in connection with any offers that the
Underwriters may
make.
(i) Delivery of Reports. From the date of this Agreement until
the
retirement of the Underwritten Notes, or until such time as the
Representatives
advise the Depositor that the Underwriters have ceased to maintain
a secondary
market in the Publicly Registered Notes, whichever occurs first, to
deliver to
the Representatives upon request to the extent not otherwise
available from any
publicly available source copies of: (i) the annual statement of
compliance, the
Servicer's report on its assessment of compliance with the minimum
servicing
criteria and the related attestation report delivered pursuant to
Article III of
the Sale and Servicing Agreement, (ii) each certificate and the
annual
statements of compliance delivered to the Indenture Trustee
pursuant to Article
III of the Indenture, (iii) each amendment to any Basic Document
and (iv) each
monthly investor report for the Trust.
(j) Cooperation with Rating Agencies. If the ratings provided
with
respect to the Notes by the rating agency or agencies that
initially rate the
Notes are conditional upon the furnishing of documents or the
taking of any
other actions by the Depositor, the Depositor will furnish such
documents and
take any such other actions.
6.
Conditions of the Obligations of the Underwriters. The obligations
of
the Underwriters to purchase and pay for the Underwritten Notes
will be subject
to the accuracy of the representations and warranties on the part
of the
Depositor in this Agreement, to the accuracy of the statements of
officers of
the Depositor and Ford Credit made pursuant to the provisions of
this Agreement,
to the performance by the Depositor of its obligations under this
Agreement and
to the following additional conditions precedent:
(a) Accountants' Letter. On or prior to the Closing Date,
PricewaterhouseCoopers LLP (or other independent accountants
reasonably
acceptable to the Representatives) will have furnished to the
Representatives a
letter dated as of the Closing Date substantially in the form and
substance of
the draft to which the Representatives previously agreed,
concerning information
at the Time of Sale and as of the Closing Date.
(b) Registration Compliance; No Stop Order. The Prospectus and
each
Trust Free Writing Prospectus will have been timely filed with the
Commission
under the Act (in the case of an Trust Free Writing Prospectus, to
the extent
required by Rule 433 under the Act) and in accordance with Section
5(b) of this
Agreement; and, as of the Closing Date, no stop order suspending
the
effectiveness of the Registration Statement will be in effect, and
no
proceedings for such purpose will be pending before or, to the
knowledge of the
Depositor, threatened by the Commission.
(c) Officer's Certificates as to Representations and Warranties.
The
Representatives will have received an officer's certificate dated
the Closing
Date of the
9
<PAGE>
Chairman of the Board, the President, an Executive Vice President,
a Vice
President, the Treasurer or any Assistant Treasurer of:
(i) Ford Credit, in which such officer will state that, to his
or
her
knowledge after reasonable investigation, the representations
and
warranties of the Servicer contained in the Sale and Servicing
Agreement
and
of Ford Credit contained in the Purchase Agreement are true and
correct
in
all material respects and that Ford Credit has complied with
all
agreements and satisfied all conditions to be performed by it or
satisfied
by
it under such agreements in all material respects.
(ii) The Depositor, in which such officer will state that, to
his
or
her knowledge after reasonable investigation, the representations
and
warranties of the Depositor contained in the Trust Agreement, the
Sale and
Servicing Agreement and the Purchase Agreement are true and correct
in all
material respects, and that the Depositor has complied with all
agreements
and
satisfied all conditions to be performed by it or satisfied by it
under
such
agreements in all material respects.
(d) Officer's Certificates as to Conditions Precedent. The
Representatives will have received as of the Closing Date an
officer's
certificate signed by the Chairman of the Board of Managers, the
President, the
Executive Vice President - Finance, the Treasurer or the Assistant
Treasurer of
the Depositor representing and warranting that the representations
and
warranties of the Depositor in the Underwriting Agreement are true
and correct
in all material respects, and that the Depositor has complied with
all
agreements and satisfied all conditions to be performed by it or
satisfied by it
under the Underwriting Agreement in all material respects.
(e) No Material Adverse Change. Since the respective dates as of
which
information is given in the Prospectus and the Offering Memorandum,
as amended
or supplemented, there has not occurred any material adverse
change, or any
development involving a prospective material adverse change, in or
affecting
particularly (i) the business or assets of the Depositor, or any
material
adverse change in the financial position or results of operations
of the
Depositor or (ii) the business or assets of Ford Credit and its
subsidiaries
considered as a whole, or any material adverse change in the
financial position
or results of operations of Ford Credit and its subsidiaries
considered as a
whole, otherwise than as set forth or contemplated in the
Prospectus, which in
any case makes it impracticable or inadvisable in the
Representatives'
reasonable judgment to proceed with the public offering or the
delivery of the
Publicly Registered Notes on the terms and in the manner
contemplated in the
Prospectus or the offering or the delivery of the Exempt Notes on
the terms and
in the manner contemplated in the Offering Memorandum.
(f) War Out. Subsequent to the execution and delivery of this
Agreement, the United States has not become engaged in
hostilities
which have resulted in the declaration of a national emergency or a
declaration
of war, which makes it impracticable or inadvisable in the
Representatives'
reasonable judgment
10
<PAGE>
to proceed with the public offering or the delivery of the Publicly
Registered
Notes on the terms and in the manner contemplated in the Prospectus
as amended
or supplemented or the offering or the delivery of the Exempt Notes
on the terms
and in the manner contemplated in the Offering Memorandum as
amended or
supplemented.
(g) Inhouse Opinion. Susan J. Thomas, Esq., Secretary of the
Depositor
and Ford Credit and Managing Counsel, Ford Credit Global &
Structured Finance,
of Ford Motor Company, or other counsel satisfactory to the
Representatives in
their reasonable judgment, will have furnished to the
Representatives, her
written opinion, dated as of the Closing Date, in form satisfactory
to the
Representatives in their reasonable judgment, substantially to the
effect that:
(i) Ford Credit is validly existing and in good standing as a
corporation under the Delaware General Corporation Law. Ford Credit
is duly
qualified to transact business and is in good standing in each
jurisdiction
in
the United States of America in which the conduct of its business
or the
ownership of its properties requires such qualification, unless the
failure
to
obtain such qualification would not reasonably be expected to have
a
material adverse effect on the ability of Ford Credit to perform
its
obligations under the Transaction Documents to which it is a
party.
(ii) Ford Credit has the corporate power and authority to
execute, deliver and perform all its obligations under the
Transaction
Documents to which it is a party under the Delaware General
Corporation
Law.
Ford Credit has duly authorized the execution and delivery of
the
Transaction Documents to which it is a party and the consummation
of the
transactions contemplated thereby by all requisite corporate action
under
the
Delaware General Corporation Law. Ford Credit has duly executed
and
delivered each of the Transaction Documents to which it is a party
under
the
Delaware General Corporation Law.
(iii) The Depositor is validly existing and in good standing as
a
limited liability company under the Delaware Limited Liability
Company Act,
6
Delaware Code Section 18-101 et seq., as amended (the "Delaware
Limited
Liability Company Act"). The Depositor is duly qualified to
transact
business and is in good standing in each jurisdiction in the United
States
of
America in which the conduct of its business or the ownership of
its
properties requires such qualification, unless the failure to
obtain such
qualification would not reasonably be expected to have a material
adverse
effect on the ability of the Depositor to perform its obligations
under the
Transaction Documents to which it is a party.
(iv) The Depositor has the limited liability company power and
authority to execute, deliver and perform all its obligations under
the
Transaction Documents to which it is a party under the Delaware
Limited
Liability Company Act. The Depositor has duly authorized the
execution and
delivery of the Transaction Documents to which it is a party and
the
consummation of the transactions contemplated thereby by all
requisite
action under the Delaware Limited Liability Company Act. The
Depositor has
duly
executed and delivered each of the Transaction
11
<PAGE>
Documents to which it is a party under the Delaware Limited
Liability
Company Act.
(v) The execution and delivery by Ford Credit of each of the
Transaction Documents to which it is a party and the consummation
by Ford
Credit of the transactions contemplated thereby, will not conflict
with or
result in a breach of any of the terms or provisions of, or
constitute a
default (in each case material to Ford Credit and its
subsidiaries
considered as a whole) under or result in the creation or
imposition of any
lien, charge or encumbrance (in each case material to Ford Credit
and its
subsidiaries considered as a whole), other than pursuant to the
Transaction
Documents, upon any of the properties or assets of Ford Credit
pursuant to
the
terms of any indenture, mortgage, deed of trust, loan
agreement,
guarantee, lease financing agreement or similar agreement or
instrument
known to me under which Ford Credit is a debtor or guarantor, nor
will such
action conflict with or violate any of the provisions of the
Certificate of
Incorporation or the By-Laws of Ford Credit.
(vi) The execution and delivery by the Depositor and the Trust
of
each
of the Transaction Documents to which it is a party and the
consummation by each such Person of the transactions contemplated
thereby
(including the issuance and delivery of the Notes), will not
conflict with
or
result in a breach of any of the terms or provisions of, or
constitute a
default under or result in the creation or imposition of any lien,
charge
or
encumbrance, other than pursuant to the Transaction Documents, upon
any
of
the properties or assets of the Depositor or the Trust pursuant to
the
terms of any indenture, mortgage, deed of trust, loan agreement,
guarantee,
lease financing agreement or similar agreement or instrument under
which
the
Depositor or the Trust is a debtor or guarantor, nor will any
such
action conflict with or violate any of the provisions of the
Certificate of
Formation or the LLC Agreement of the Depositor or the Certificate
of Trust
or
the Trust Agreement of the Trust.
(vii) Such counsel does not know of any legal or governmental
proceedings pending or threatened against Ford Credit, the
Depositor or the
Trust, or to which their respective properties are subject, (i)
seeking any
determination or ruling that could reasonably be expected to have
a
material adverse effect on the ability of Ford Credit, the
Depositor or the
Trust to enter into or perform their respecti
