Profit Maintenance Agreement - Ford Motor Co. and Ford Motor Credit Co.
This AMENDED AND RESTATED PROFIT MAINTENANCE AGREEMENT is dated as of
January 1, 2002 between Ford Motor Company, a Delaware corporation ("Ford"), and
Ford Motor Credit Company, a Delaware corporation ("Ford Credit").
WITNESSETH:
WHEREAS, Ford and Ford Credit (i) entered into a profit maintenance
agreement dated as of December 12, 1974, as amended by amendments dated as of
April 14, 1978, January 15, 1980, March 28, 1989, March 15, 1990, July 1, 1993
and January 1, 1999; and (ii) desire to further amend and restate the same to
read as set forth below (such agreement as amended and restated hereby being
hereinafter called the "Agreement").
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements hereinafter provided, the parties hereto hereby agree as follows:
1. As used herein, "Invested Capital" shall mean an amount equal to Ford
Credit's total stockholder's equity, less any equity in the net assets of
unconsolidated subsidiaries, as shown on the balance sheet of Ford Credit and
its consolidated subsidiaries as of December 31 of the year preceding the
calendar year for which any computation is made hereunder.
2. (a) Upon the demand of Ford Credit, Ford shall make a payment to
Ford Credit, as of the end of each calendar quarter during the term of this
Agreement (beginning with the first quarter of 2002), equal to the greater of
(i) an amount sufficient to cause the income before income taxes of Ford Credit
and its consolidated subsidiaries for the calendar year in which such calendar
quarter falls, as shown on a consolidated statement of income of Ford Credit and
its consolidated subsidiaries for such calendar quarter, to be not less than 2%
on an annualized basis of Invested Capital, or (ii) an amount sufficient to
cause the net income of Ford Credit and its consolidated subsidiaries for the
calendar year in which such calendar quarter falls, as shown on such statement
of income, to be not less than 1% on an annualized basis of Invested Capital. In
the event that the amounts computed under clauses (i) and (ii) above shall be
equal, Ford shall make a payment to Ford Credit equal to such amount. The
determination of whether and the extent to which any payment is required to be
made as of the end of a calendar quarter shall be based on the latest available
earnings forecast of Ford Credit and its consolidated subsidiaries for such
calendar quarter and any actual earnings in any prior calendar quarters in the
same calendar year.
(b) In the event that Ford shall have made a payment to Ford Credit
under paragraph 2(a) with respect to any calendar quarter, and Ford Credit
thereafter shall have for any subsequent calendar quarter during the same
calendar year, both (i) income before income taxes of Ford Credit and its
consolidated subsidiaries in an amount in excess of 2% on an annualized basis of
Invested Capital, and (ii) net income of Ford Credit and its consolidated
subsidiaries in an amount in excess of 1% on an annualized basis of Invested
Capital, Ford Credit shall, upon demand of Ford, repay to Ford an amount equal
to the lesser of (A) an amount sufficient to reduce income before income taxes
of Ford Credit and its consolidated subsidiaries to 2% on an annualized basis of
Invested Capital, or (B) an amount sufficient to reduce net income of Ford
Credit and its consolidated subsidiaries to
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1% on an annualized basis of Invested Capital (but not to exceed the aggregate
of any payments made to Ford Credit under paragraph 2(a) during such year less
any prior repayments made by Ford Credit during such year under this paragraph
2(b)). In the event that the amounts computed under clauses (A) and (B) above
shall be equal, Ford Credit shall make a repayment to Ford equal to such amount.
3. 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 and shall continue to make retail and lease
financing generally available to such dealers' customers to no less an extent
than Ford Credit historically has made such services available.
4. All determinations hereunder shall be made in accordance with
generally accepted accounting principles.
5. This Agreement contains the entire agreement between the parties
hereto with respect to the transactions contemplated hereby and shall supersede
all prior agreements between the parties hereto with respect to the subject
matter hereof.
6. This Agreement shall continue indefinitely until terminated by
either party by such party giving the other written notice of termination. If
such notice is given at least 10 days prior to the first day of the calendar
quarter next succeeding the calendar quarter in which the notice is given, then
this Agreement shall terminate on such date; otherwise it shall terminate on the
first day of the second next succeeding calendar quarter.
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
By:/s/Elizabeth S. Acton
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Name: Elizabeth S. Acton
Title: Vice President and Treasurer
FORD MOTOR CREDIT COMPANY
By:/s/Bibiana B. Boerio
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Name: Bibiana B. Boerio
Title: Executive Vice President and
Chief Financial Officer