This Agreement is dated as of October 18, 2001 between Ford Motor
Company, a Delaware corporation ("Ford"), and Ford Motor Credit Company, a
Delaware corporation ("Ford Credit").
A. Ford Credit supports the sale of Ford's products by providing,
among other things, wholesale, retail and lease financing for the purchase and
lease of those products.
B. Ford Credit is highly dependent on the public debt markets to
raise funds for its business.
C. Ford Credit's ability to raise funds in the public debt markets is
highly dependent on its credit ratings, which, in turn, are dependent on the
level of Ford Credit's equity capital, the quality of its assets and its
D. It is important to the success of Ford that Ford Credit remains a
viable finance company that can fund itself in the public debt markets and
continue supporting the sale of Ford's products.
E. Towards maintaining the viability of Ford Credit, the parties
desire to provide for certain agreements regarding transactions between them
and the creditworthiness of Ford Credit.
NOW, THEREFORE, for good and valuable consideration and the mutual
agreements herein provided, the parties agree as follows:
1. The parties agree that all Affiliate Receivables (as defined below)
shall be on arm's-length terms. For purposes hereof, "Affiliate Receivables"
means any advance, loan, extension of credit, or other financing to Ford, The
Hertz Corporation ("Hertz") or any affiliate of Ford whose assets and
liabilities are classified on Ford's consolidated balance sheet as Automotive
("Automotive Affiliate"). Ford Credit shall enforce, and cause its subsidiaries
to enforce, all Affiliate Receivables in a commercially reasonable manner, and
Ford shall pay, and cause its Automotive Affiliates to pay, Affiliate
Receivables in accordance with their terms.
2. Ford Credit shall not, nor shall it permit any of its subsidiaries
to, guarantee any indebtedness of, or purchase any equity securities issued by,
or make any other investment in, Ford (parent company only), Hertz or any
Automotive Affiliate. In addition, Ford Credit shall not, nor shall it permit
any of its subsidiaries to, purchase or finance any real property or
manufacturing equipment (including tooling) from or of Ford or any Automotive
Affiliate that is classified as an Automotive asset on Ford's consolidated
balance sheet. Ford shall not, nor shall it permit Hertz or any Automotive
Affiliate to, request or require Ford Credit, or Ford Credit's subsidiaries, to
do any of the transactions prohibited by this Section 2.
3. Ford and Ford Credit agree that Ford Credit's total stockholder's
equity as stated on or reflected in its consolidated financial statements shall,
at the end of any calendar quarter during which this Agreement is in effect, be
maintained at a commercially reasonable level appropriate to support the amount,
quality and mix (i.e., retail finance receivables, wholesale finance receivables
and lease receivables) of Ford Credit's assets as stated on or reflected in its
consolidated financial statements for the same calendar quarter, taking into
account general business conditions affecting Ford Credit.
4. Ford Credit shall, and shall cause each of its finance subsidiaries
to, conduct its business, including its finance and lease business, in a prudent
and commercially reasonable manner, including maintaining and adhering to credit
risk underwriting standards for finance and lease receivables and residual
assumptions for lease receivables it acquires or originates that are consistent
with industry standards. Ford shall not, nor shall it permit any Automotive
Affiliate to, require Ford Credit or any of its subsidiaries to accept credit or
residual risk beyond what it would be willing to accept acting in a prudent and
commercially reasonable manner. For avoidance of doubt, acquisition or
origination of finance or lease receivables having terms that are not
market-based shall be considered to be prudent and commercially reasonable if
subsidies (in the form of interest rate subvention payments, guarantees,
residual risk sharing arrangements or otherwise) are provided by Ford or an
Automotive Affiliate in an amount sufficient to assure that Ford Credit or a
finance subsidiary of Ford Credit, as the case may be, will receive the economic
benefits of such receivables as if they had been acquired or originated on
market-based terms. Notwithstanding the foregoing, in recognition of the fact
that Ford uses Ford Credit as the exclusive provider of financial services for
special retail and lease programs to support the sale of products manufactured
by Ford and other Automotive Affiliates, it is understood that it would be
commercially reasonable and prudent for Ford Credit to accept, to a limited
extent, higher levels of credit risk than it might otherwise accept in order to
continue as the exclusive provider of financial services to Ford and the other
Automotive Affiliates with respect to such programs.
5. Ford and Ford Credit agree that (a) Ford Credit shall at all times
maintain its books, records, financial statements and bank accounts separate
from those of Ford and any Automotive Affiliate; (b) Ford Credit shall maintain
its assets in such a manner that it will not be costly or difficult to
segregate, ascertain or identify its assets from those of Ford and any
Automotive Affiliate; (c) the funds and other assets of Ford Credit shall not be
commingled with those of Ford or any Automotive Affiliate; (d) Ford Credit shall
at all times hold itself out as a legal entity separate and distinct from Ford
and any Automotive Affiliate; (e) except with respect to the performance of
their respective obligations under that certain Amended and Restated Profit
Maintenance Agreement dated as of January 1, 1999 between Ford and Ford Credit
(as it may be amended from time to time), each will act in a manner and conduct
its business such that creditors of Ford, acting reasonably, will rely primarily
on the creditworthiness of, and look solely to the assets of Ford, for repayment
of indebtedness and creditors of Ford Credit, acting reasonably, will rely
primarily on the creditworthiness of, and look solely to the assets of Ford
Credit, for prepayment of indebtedness and (f) they otherwise will take such
reasonable and customary action so that Ford Credit will not be consolidated
with Ford or any Automotive Affiliate in any case or other proceeding seeking
liquidation, reorganization or other relief with respect to Ford or any
Automotive Affiliate or its debts under any bankruptcy, insolvency or other
6. The sum of (i) the aggregate amount of unused committed bank line
facilities, (ii) the unutilized portion of the aggregate dollar amount of
receivables that bank-sponsored, commercial paper issuers (conduits) are
contractually committed to purchase from Ford Credit and (iii) cash and
marketable securities (and any other sources of liquidity that may be agreed
upon from time to time) of Ford Credit and its consolidated subsidiaries shall
at all times be at least equal to 100% of the outstanding commercial paper of
Ford Credit and its consolidated subsidiaries.
7. In the event that Ford or any of its subsidiaries engages in a
corporate transaction that causes the Pension Benefit Guaranty Corporation
("PBGC") to threaten to terminate the pension plans sponsored by Ford or any of
its subsidiaries, Ford shall, or shall cause any of its subsidiaries to, seek to
negotiate a settlement with the PBGC to avoid an involuntary plan termination.
In connection with such negotiated settlement, Ford shall endeavor not to grant
to the PBGC a security interest in the assets of Ford Credit that has priority
over the claims of unsecured creditors of Ford Credit.
8. All determinations to be made under this Agreement shall be made in
accordance with, or with reference to financial statements prepared in
accordance with, United States generally accepted
accounting principles. For purposes of this Agreement, the term "lease
receivables" shall mean "net investment in operating leases" as stated on or
reflected in Ford Credit's consolidated financial statements.
9. During the term of this Agreement, Ford Credit shall continue to
make inventory and capital financing generally available to dealers of vehicles
manufactured or sold by Ford or its Automotive Affiliates and shall continue to
make retail and lease financing generally available to such dealers' customers
to substantially the same extent that Ford Credit has historically made such
services available, so long as providing such services to such an extent would
not result in a breach of any of the foregoing provisions. Nothing herein
precludes Ford Credit from providing or continuing to provide financial services
to automotive manufacturers other than Ford or its Automotive Affiliates.
10. This Agreement shall be construed and interpreted in accordance
with, and governed by, the internal laws of the State of New York, excluding any
choice of law rules that may direct the application of the laws of another
11. This Agreement shall terminate on the Termination Date, which shall
initially be October 17, 2006. On October 17, 2002, and on each October 17
thereafter during the term of this Agreement, the Termination Date shall be
extended automatically for an additional one-year period (ending on the October
17 next following the then-current Termination Date) unless either party shall
have given the other party written notice during the period beginning on the
July 1 and ending on the October 1 immediately preceding such October 17,
specifying its election not to extend the Termination Date beyond the
then-current Termination Date and that the term of this Agreement shall,
therefore, expire on such then-current Termination Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FORD MOTOR COMPANY FORD MOTOR CREDIT COMPANY
By: /s/Elizabeth S. Acton By: /s/Bibiana Boerio
Elizabeth S. Acton Bibiana Boerio
Vice President and Treasurer Executive Vice President and Chief