Exhibit 10-B
CONFORMED COPY
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FOURTH AMENDED AND RESTATED COMMITMENT
TRANSFER AGREEMENT
Dated as of May 23, 1994
CHRYSLER FINANCIAL CORPORATION,
as Borrower
CHEMICAL BANK, as Agent
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Other Definitional Provisions. . . . . . . . . . . . . . . . . . 15
SECTION 2. AMOUNT AND TERMS OF THE COMMITMENTS . . . . . . . . . . . . . 15
2.1 The Commitments. . . . . . . . . . . . . . . . . . . . . . . . . 15
2.2 Procedure for Borrowing. . . . . . . . . . . . . . . . . . . . . 15
2.3 Repayment of Outstanding Loans . . . . . . . . . . . . . . . . . 16
2.4 Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . 16
2.5 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.6 Minimum Amount of Eurodollar Tranches. . . . . . . . . . . . . . 17
2.7 Interest Rate and Payment Dates. . . . . . . . . . . . . . . . . 17
2.8 Mandatory Repayments . . . . . . . . . . . . . . . . . . . . . . 18
2.9 Conversion and Continuation Options. . . . . . . . . . . . . . . 18
2.10 Computation of Interest. . . . . . . . . . . . . . . . . . . . . 19
2.11 Inability to Determine Eurodollar Rate . . . . . . . . . . . . . 20
2.12 Pro Rata Treatment and Payments. . . . . . . . . . . . . . . . . 20
2.13 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.14 Increased Costs. . . . . . . . . . . . . . . . . . . . . . . . . 21
2.15 Transfer of Eurodollar Loans . . . . . . . . . . . . . . . . . . 22
2.16 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.17 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.18 Transferred Commitment . . . . . . . . . . . . . . . . . . . . . 25
2.19 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . 25
3.1 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . 25
3.2 No Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.3 Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . 26
3.4 Corporate Authorization; No Violation. . . . . . . . . . . . . . 26
3.5 Government Authorization . . . . . . . . . . . . . . . . . . . . 26
3.6 Federal Regulations. . . . . . . . . . . . . . . . . . . . . . . 26
3.7 Enforceable Obligations. . . . . . . . . . . . . . . . . . . . . 26
3.8 No Material Litigation . . . . . . . . . . . . . . . . . . . . . 26
3.9 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.10 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.11 Investment Company Act; Other Regulations. . . . . . . . . . . . 27
3.12 Ownership of Property; Liens . . . . . . . . . . . . . . . . . . 27
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . 28
4.1 Conditions to Effectiveness. . . . . . . . . . . . . . . . . . 28
4.2 Conditions to All Loans. . . . . . . . . . . . . . . . . . . . . 28
(a) Representations and Warranties. . . . . . . . . . . . . . . 28
(b) No Default or Event of Default. . . . . . . . . . . . . . . 29
SECTION 5. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . 29
5.1 Financial Statements, etc. . . . . . . . . . . . . . . . . . . . 29
5.2 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . 30
5.3 Maintenance of Existence and Property. . . . . . . . . . . . . . 30
5.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . 31
6.1 Limitation on Indebtedness and Guaranties. . . . . . . . . . . . 31
6.2 Consolidated Tangible Net Worth. . . . . . . . . . . . . . . . . 32
6.3 Fixed Charges Coverage Ratio . . . . . . . . . . . . . . . . . . 32
6.4 Limitation on Transactions with Affiliates . . . . . . . . . . . 33
6.5 Limitation on Amendments to Income Maintenance Agreement . . . . 33
6.6 Limitation on Fundamental Change . . . . . . . . . . . . . . . . 33
6.7 Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . 34
6.8 Multiemployer Plans; etc.. . . . . . . . . . . . . . . . . . . . 36
SECTION 7. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . 39
8.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . 39
8.4 Reliance by Agent and CASC . . . . . . . . . . . . . . . . . . . 39
8.5 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . 40
8.6 Non-Reliance on Agent, Other Banks and CASC. . . . . . . . . . . 40
8.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 40
8.8 Agent in its Individual Capacity . . . . . . . . . . . . . . . . 41
8.9 Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 41
9.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . 41
9.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.3 Clearing Accounts. . . . . . . . . . . . . . . . . . . . . . . . 43
9.4 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . 43
9.5 Survival of Representations and Warranties . . . . . . . . . . . 44
9.6 Payment of Expenses. . . . . . . . . . . . . . . . . . . . . . . 44
9.7 Successors and Assigns; Participations and Assignments . . . . . 45
9.8 Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . 46
9.9 Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.10 New Banks. . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.11 Increase in Commitments. . . . . . . . . . . . . . . . . . . . . 47
9.12 Tax Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.14 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.15 Submission to Jurisdiction; Waivers. . . . . . . . . . . . . . . 48
9.16 Integration. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.17 Restatement. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.18 WAIVERS OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . 49
SCHEDULE
Schedule I - Banks
EXHIBITS
Exhibit A-1 - Form of Opinion of Simpson Thacher & Bartlett
Exhibit A-2 - Form of Opinion of General Counsel
Exhibit B - Form of New Bank Supplement
Exhibit C - Form of Addendum
Exhibit D - Chrysler Capital Note Subordination Terms
Exhibit E - Form of Closing Certificate
Exhibit F - Form of Note
FOURTH AMENDED AND RESTATED COMMITMENT TRANSFER AGREEMENT dated
as of May 23, 1994 among CHRYSLER FINANCIAL CORPORATION, a Michigan
corporation (the "Company"), the several financial institutions parties to
this Agreement (collectively, the "Banks"; individually, a "Bank") and
CHEMICAL BANK, a New York banking corporation ("Chemical"), as agent for
the Banks (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Company, the Agent and the several financial
institutions parties thereto (the "Original Banks") entered into a
Revolving Credit Agreement dated as of November 15, 1987, as amended by
Amendments dated as of February 4, 1988 and September 1, 1989 (the
"Original Credit Agreement"), pursuant to which the Original Banks agreed
to make loans to the Company for its general corporate purposes;
WHEREAS, the Company and the Banks entered into an Amended and
Restated Commitment Transfer Agreement dated as of December 31, 1989 (as
amended, the "Amended and Restated Commitment Transfer Agreement") for the
purpose of making certain amendments to the Original Credit Agreement;
WHEREAS, the Company and the Banks entered into a Second Amended
and Restated Commitment Transfer Agreement dated as of July 29, 1992 (as
amended, the "Second Amended and Restated Commitment Transfer Agreement")
for the purpose of making certain amendments to the Amended and Restated
Commitment Transfer Agreement;
WHEREAS, the Company and the Banks entered into a Third Amended
and Restated Commitment Transfer Agreement dated as of June 30, 1993 (as
amended through the date hereof, the "Third Amended and Restated Commitment
Transfer Agreement") for the purpose of making certain amendments to the
Second Amended and Restated Commitment Transfer Agreement; and
WHEREAS, the Company has requested that the Banks enter into this
Fourth Amended and Restated Commitment Transfer Agreement for the purpose
of making certain amendments to the Third Amended and Restated Commitment
Transfer Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree that from and after
the Effective Date (as hereinafter defined) the Third Amended and Restated
Commitment Transfer Agreement shall be amended and restated in its entirety
as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined
in the caption to this Agreement shall have the meanings set forth therein
and the following terms have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"Accumulated Funding Deficiency" shall mean any "accumulated
funding deficiency" as defined in Section 302 of ERISA.
"ACH" shall mean an Automated Clearing House.
"Addendum" shall mean an instrument, substantially in the form of
Exhibit C, by which a Bank becomes a party to this Agreement.
"Affected Bank" shall have the meaning set forth in subsection 2.14.
"Affiliate" of any Person, shall mean any other Person that,
directly or indirectly, controls or is controlled by or is under
common control with such Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect
to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Agreement" shall mean this Fourth Amended and Restated
Commitment Transfer Agreement, as the same may be amended, modified or
supplemented from time to time.
"Applicable Base Rate Margin" shall mean, with respect to each
Base Rate Loan at any date, the applicable percentage per annum set
forth below based upon the Status and Utilization on such date
(provided that if the Commitments have been terminated prior to such
date, the Utilization for such date shall be deemed to be greater than
33-1/3%):
Level I, II, III or IV Level V
Status Status
If Utilization is less
than or equal to 33-1/3%: 0.0000% 0.1250%
If Utilization is
greater than 33-1/3%: 0.0000% 0.2500%
"Applicable Eurodollar Margin" shall mean, with respect to each
Eurodollar Loan at any date, the applicable percentage per annum set
forth below based upon the Status and Utilization on such date
(provided that if the Commitments have been terminated prior to such
date, the Utilization for such date shall be deemed to be greater than
33-1/3%):
Level I Level II Level III Level IV Level V
Status Status Status Status Status
If Utilization is
less than or equal
to 33-1/3%: 0.3125% 0.4000% 0.4000% 0.5000% 0.7500%
If Utilization is
greater than 33-1/3%: 0.4375% 0.5250% 0.5250% 0.6250% 0.8750%
"Assessment Rate" shall mean for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most recently
estimated by the Agent as the then current net annual assessment rate
that will be employed in determining amounts payable by Chemical to
the Federal Deposit Insurance Corporation (or any successor) for
insurance by such Corporation (or any successor) of time deposits made
in Dollars at Chemical's domestic offices.
"Available Transferred Commitment" shall mean, as to any Bank, at
a particular time, an amount equal to the excess, if any, of (a) the
amount of such Bank's Commitment at such time over (b) the aggregate
unpaid principal amount at such time of all Loans made by such Bank
pursuant to subsection 2.1; collectively, as to all the Banks, the
"Available Transferred Commitments".
"Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Effective Federal Funds Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time
to time by Chemical as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced; "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment
Rate; and "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Federal Reserve
Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices
of the Federal Reserve Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or,
if such rate shall not be so reported for such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York City
time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Agent from three New York City
negotiable certificate of deposit dealers of recognized standing
selected by it. If for any reason the Agent shall have determined
(which determination shall be conclusive absent clearly demonstrable
error) that it is unable to ascertain the Base CD Rate or the
Effective Federal Funds Rate or both for any reason, including the
inability or failure of the Agent to obtain sufficient quotations in
accordance with the terms thereof, the Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first sentence of
this definition, as appropriate, until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to
a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Effective Federal Funds Rate shall be effective on the effective date
of such change in the Prime Rate, the Three-Month Secondary CD Rate or
the Effective Federal Funds Rate, respectively.
"Base Rate Loans" shall mean Loans hereunder at such time as they
are made and/or being maintained at a rate of interest based upon the
Base Rate.
"Board" shall mean the Board of Directors of the Company, the
Executive Committee thereof or any other committee consisting of two
or more directors of the Company designated by the Board of Directors
having authority to exercise, when the Board of Directors is not in
session, the powers of the Board of Directors (subject to any
designated limitations) in the management of the business and affairs
of the Company.
"Borrowing Date" shall mean any Business Day specified in a
notice pursuant to subsection 2.2 as a date on which the Company
requests the Banks to make Loans hereunder.
"Business Day" shall mean a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close, except that, when used in connection with a
Eurodollar Loan with respect to which the Eurodollar Rate is
determined based upon the Telerate screen in accordance with the
definition of Eurodollar Rate, "Business Day" shall mean any Business
Day on which dealings in foreign currencies and exchange between banks
may be carried on in London, England and New York, New York.
"Canadian Corporation" shall mean any corporation which (a) is
organized under the laws of Canada or any province of Canada and (b)
conducts substantially all of its business within Canada.
"Capital Base" shall mean, at any date, the sum of (a) the lesser
of (i) Subordinated Debt and (ii) 100% of Consolidated Tangible Net
Worth plus (b) Consolidated Tangible Net Worth.
"Capital Notes" shall mean any notes made by the Company in favor
of Chrysler that are issued for cash at par and are subordinated on
the terms set forth in Exhibit D in right of payment to the Senior
Debt.
"CASC" shall mean Chemical Bank Agency Services Corporation, a
Delaware corporation (and any successor).
"Chrysler" shall mean Chrysler Corporation, a Delaware
corporation.
"Chrysler Agreement" shall mean the Second Amended and Restated
Revolving Credit Agreement dated as of June 30, 1993 among Chrysler
Corporation, the banks parties thereto and Chemical Bank as agent for
such banks, as the same may be amended, modified or supplemented from
time to time.
"Chrysler Capital" shall mean Chrysler Capital Corporation, a
Delaware corporation.
"Chrysler First" shall mean Chrysler First Inc., a Pennsylvania
corporation.
"Clearing Account" shall mean, as to any Bank, the bank account
designated in its Addendum, or such other bank account as such Bank
shall designate in writing to the Agent from time to time, provided
that such other bank account shall be maintained at the office of an
ACH member.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" shall mean, as to any Bank, its obligation to make
Loans to the Company pursuant to subsection 2.1 in the amount referred
to therein, as such amount may be determined from time to time
pursuant to subsection 2.18; collectively, as to all the Banks, the
"Commitments".
"Commitment Percentage" shall mean, as to any Bank at any time,
the percentage of the aggregate Commitments then constituted by such
Bank's Commitment.
"Commitment Period" shall mean the period from and including the
Effective Date (or, in the case of any New Bank, from the date that
such New Bank becomes party to this Agreement as provided in
subsection 9.10) to but not including the Termination Date or such
earlier date as the Commitments shall terminate as provided herein.
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Company and is treated as a single employer under Section
414 of the Code.
"Consolidated Tangible Net Worth" shall mean, at any date, the
amount which would appear in accordance with GAAP on a consolidated
balance sheet of the Company and its Subsidiaries opposite the heading
"total shareholders' investment" (or any similar item) plus the
aggregate unpaid principal amount of the Capital Notes, less the
aggregate net book value (after deducting any reserves applicable
thereto) of all items of the following character which are included in
the consolidated assets of the Company and its Subsidiaries:
(a) franchises, licenses, permits, patents, patent
applications, copyrights, trademarks, trade names, goodwill,
experimental or organizational expense, and other like
intangibles;
(b) deferred charges and prepaid expenses (other than
prepaid interest, insurance and taxes);
(c) unamortized debt discount and expense;
(d) assets which are pledged or deposited as security for
or for the purpose of paying any obligations, contingent or
otherwise, which are not included in consolidated liabilities;
and
(e) amounts in respect of capital stock, promissory notes
and other securities issued by the Company or a Subsidiary and
held in its treasury.
"Contractual Obligation" shall mean, as to any Person, any
enforceable provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a party
or by which it or any of its property is bound.
"D&P" shall mean Duff & Phelps Credit Rating Company and its
successors.
"Default" shall mean any of the events specified in Section 7,
whether or not any requirement for the giving of notice, lapse of
time, or both, or the happening of any other condition, has been
satisfied.
"Dollars" or "$" shall mean lawful currency of the United States
of America.
"Domestic Subsidiary" shall mean any Subsidiary other than a
Foreign Subsidiary.
"Effective Date" shall mean the date on which the conditions
specified in subsection 4.1 shall be satisfied.
"Effective Federal Funds Rate" shall mean, for any day, the
weighted average of the rates on overnight Federal funds transactions
between members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average quotations for the day
of such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, in the case of any Eurodollar Loan,
with respect to each day during each Interest Period (other than any
seven-day Interest Period) pertaining to such Eurodollar Loan, the
rate of interest determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the
Telerate screen as of 11:00 A.M., London time, two Business Days prior
to the beginning of such Interest Period, provided, that in the event
that such rate does not appear on Page 3750 of the Telerate Service
(or otherwise on such service), the "Eurodollar Rate" shall be
determined by reference to such other publicly available service for
displaying eurodollar rates as may be agreed upon by the Agent and the
Company. In the absence of such agreement, and in the case of any
seven-day Interest Period pertaining to such Eurodollar Loan, the
"Eurodollar Rate" shall instead be the rate per annum equal to the
average (rounded upward, if necessary, to the nearest 1/100th of 1%)
of the respective rates notified to the Agent by each of the Reference
Banks as the rate at which such Reference Bank is offered Dollar
deposits at or about 10:00 A.M., New York City time, two Business Days
prior to the beginning of the relevant Interest Period, in the
interbank eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurodollar Loans are then
being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable
to the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
"Eurodollar Tranche" shall mean and be a collective reference to
Eurodollar Loans having the same Interest Period, whether or not
originally made on the same day.
"Event of Default" shall mean any of the events specified in
Section 7, provided that any requirement for the giving of notice, the
lapse of time, or both, or the happening of any other condition, has
been satisfied.
"Excess Utilization Period" shall mean any Utilization Period
with respect to which the Utilization exceeds 33-1/3%.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System of the United States.
"Final Date" shall mean the later of (a) the last day of the
Commitment Period and (b) the date on which all of the Loans shall
have been paid in full.
"Finance Business" shall mean (a) the small loan, personal
finance, consumer finance or installment credit business (including
the business of making collateral loans secured by credit obligations
or personal property), (b) the sales finance business and the business
of purchasing and selling notes and accounts receivable (whether or
not repayable in installments) and interests therein, (c) the
commercial financing and factoring business as generally conducted,
including the leasing of tangible personal property, and (d) any
business (including, without limitation, securitization and other
receivables-based transactions) related to or conducted in connection
with any business of the character referred to in the foregoing
clauses (a), (b) and (c) other than insurance underwriting.
"Finance-Related Insurance Business" shall mean the business of
(a) insuring articles and merchandise the sale or leasing of which is
financed in the ordinary course of the Finance Business, and (b)
insuring the lives of individuals who are liable for the payment of
the amounts owing on such sales or leases and writing accident and
health insurance on such individuals; provided, however, that Finance-
Related Insurance Business shall also include other insurance business
that is not described in (a) or (b) above to the extent that such
insurance business does not produce at any time aggregate premiums
written (net of reinsurance ceded) by all Subsidiaries in an amount
greater than 50% of the aggregate amount of all premiums written (net
of reinsurance ceded) at such time in all of the insurance business of
such Subsidiaries.
"Finance Subsidiary" shall mean any Domestic Subsidiary that is
engaged primarily in the Finance Business.
"Fitch" shall mean Fitch Investors Service, Inc. and its
successors.
"Foreign Subsidiary" shall mean any Subsidiary that (a) is
organized under the laws of any jurisdiction outside the United States
of America, Puerto Rico and Canada, or (b) conducts the major portion
of its business outside the United States of America, Puerto Rico and
Canada.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time, except that for
the purposes of determining compliance with the covenants set forth in
Section 6, "GAAP" shall mean generally accepted accounting principles
in the United States of America in effect on December 31, 1993 applied
consistently with those used in compiling the financial statements
included in the 1993 Annual Report.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guaranty" shall mean, as to any Person, (a) any guaranty by such
Person of any indebtedness or other obligation of any other Person
(other than the Company or any Subsidiary), or any assurance with
respect to the financial condition of such other Person (other than
the Company or any Subsidiary), including, without limitation, any
purchase or repurchase agreement, any indemnity or any keepwell, take-
or-pay, through-put or other arrangement having the effect of assuring
or holding harmless any third Person against loss with respect to any
obligation of such other Person (other than the Company or any
Subsidiary) and (b) the face amount of all letters of credit and
acceptances issued for the account of such Person and, without
duplication, all drafts drawn thereunder. For the purposes of this
definition and subsection 6.1, the principal amount of obligations
entitled to the benefits of any Guaranty relating to any transaction
involving the origination of Consumer Finance Receivables or Wholesale
Automobile Receivables by the Company or any Subsidiary for the
account of, or the sale of Consumer Finance Receivables or Wholesale
Automobile Receivables originated by the Company or any Subsidiary to,
any other Person, shall, to the extent such Guaranty is attributable
to the retention by the Company or such Subsidiary of credit risks
relating to such Receivables, be deemed to be limited to the Reserve
Percentage of the outstanding balance of such Receivables as of the
relevant date of determination (the "Reserve Amount"), provided, that
if the maximum amount of recourse to the Company and its Subsidiaries
pursuant to any such Guaranty in respect of such credit risks shall
have been agreed to in writing, the principal amount of such
obligations shall instead be deemed to equal the lesser of (i) 100% of
such maximum amount and (ii) the relevant Reserve Amount.
As used in this definition:
"Consumer Finance Receivables" shall mean Receivables
arising out of the retail sale or lease of passenger automobiles,
light-duty trucks or recreational vehicles and originated in
accordance with the customary credit and collection policies of
the Company and its Subsidiaries with respect to Receivables of
such type generally.
"Wholesale Automobile Receivables" shall mean Receivables
arising out of extensions of credit by the Company and its
Subsidiaries to automobile dealers for the purchase of new
passenger automobiles, light-duty trucks and recreational
vehicles (including such extensions resulting from the purchase
by the Company and its Subsidiaries from Chrysler or any of its
Subsidiaries of receivables from automobile dealers representing
the deferred payment of the purchase price of new passenger
automobiles, light-duty trucks and recreational vehicles
purchased by such dealers from Chrysler or such Subsidiary) and
originated in accordance with the customary credit and collection
policies of the Company and its Subsidiaries with respect to
Receivables of such type generally.
"Reserve Percentage" shall mean, at any date of
determination, (a) with respect to any Consumer Finance
Receivables, an amount equal to five times the average credit
loss experience (expressed as a percentage) of the Company and
its Subsidiaries determined in accordance with GAAP with respect
to Receivables of such type for the period of eight consecutive
fiscal quarters ending on the last day of the most recent fiscal
period as to which financial statements have been delivered (or
are required to have been delivered) pursuant to Section
5.1(a)(i) or (ii), provided, that in no event shall the Reserve
Percentage with respect to any Consumer Finance Receivables be
less than 9.75% and (b) with respect to any Wholesale Automobile
Receivables, an amount equal to five times the average credit
loss experience (expressed as a percentage) of the Company and
its Subsidiaries determined in accordance with GAAP with respect
to Receivables of such type for the period of eight consecutive
fiscal quarters ending on the last day of the most recent fiscal
period as to which financial statements have been delivered (or
are required to have been delivered) pursuant to Section
5.1(a)(i) or (ii), provided, that in no event shall the Reserve
Percentage with respect to any Wholesale Automobile Receivables
be less than 10.50%.
"Income Maintenance Agreement" shall mean the Income Maintenance
Agreement, dated as of December 20, 1968, as amended on April 19,
1971, May 29, 1973, July 1, 1975, June 4, 1976 and March 27, 1986,
between Chrysler and the Company, as the same may be further amended,
modified or supplemented from time to time in accordance with
subsection 6.5.
"Indebtedness" shall mean, as applied to any Person, at any date,
(a) indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services which would appear on a
consolidated balance sheet of such Person (or, in the case of the
Company and its Subsidiaries, the Company) prepared in accordance with
GAAP, (b) obligations of such Person under leases which appear as
capital leases on a consolidated balance sheet of such Person prepared
in accordance with GAAP and (c) any withdrawal obligation of such
Person or any Commonly Controlled Entity thereof to a Multiemployer
Plan.
"Interest Period" shall mean with respect to any Eurodollar
Tranche:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Tranche and ending seven days or one, two, three or
six months thereafter, as selected by the Company in its notice
of borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar
Tranche and ending seven days or one, two, three or six months
thereafter, as selected by the Company by irrevocable notice to
the Agent not less than three Business Days prior to the last day
of the then current Interest Period with respect thereto (or, if
no such period is specified, ending one month thereafter);
provided that, the foregoing provisions are subject to the following:
(A) if any Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest
Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding
Business Day;
(B) no Interest Period may be selected by the Company
if such Interest Period would end after the Termination
Date; and
(C) any Interest Period of at least one month's
duration that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
relevant calendar month.
"Level" shall mean any of Level I, Level II, Level III, Level IV
or Level V.
"Level I" shall mean any of the following long-term senior
unsecured debt ratings: A- or better by S&P, A3 or better by Moody's,
A- or better by D&P or A- or better by Fitch.
"Level II" shall mean any of the following long-term senior
unsecured debt ratings: BBB+ by S&P, Baa1 by Moody's, BBB+ by D&P or
BBB+ by Fitch.
"Level III" shall mean any of the following long-term senior
unsecured debt ratings: BBB by S&P, Baa2 by Moody's, BBB by D&P or
BBB by Fitch.
"Level IV" shall mean any of the following long-term senior
unsecured debt ratings: BBB- by S&P, Baa3 by Moody's, BBB- by D&P or
BBB- by Fitch.
"Level V" shall mean any of the following long-term senior
unsecured debt ratings: BB+ or lower (or unrated) by S&P, Ba1 or
lower (or unrated) by Moody's, BB+ or lower (or unrated) by D&P or BB+
or lower (or unrated) by Fitch.
"Lien" shall mean, with respect to any property of any Person,
any mortgage, pledge, hypothecation, encumbrance, lien (statutory or
other), charge or other security interest of any kind in or with
respect to such property (including, without limitation, any
conditional sale or other title retention agreement, and any financing
lease under which such Person is lessee having substantially the same
economic effect as any of the foregoing). It is understood that any
filings, instruments or other documents evidencing the Liens created
pursuant to the Existing Credit Agreement (as defined in the Revolving
Credit Agreement) and the Trust Agreement referred to therein shall
not be deemed to constitute or create "Liens" for the purposes of this
Agreement.
"Loan" shall have the meaning set forth in subsection 2.1(a).
"Material Asset Disposition" shall have the meaning assigned in
subsection 6.6.
"Maximum Disposition Amount" at any date of determination shall
mean the greater of (a) $500,000,000 and (b) an amount equal to 5% of
the book value of the consolidated assets of the Company and its
Subsidiaries as of the last day of the most recent fiscal period as to
which financial statements have been delivered (or are required to
have been delivered) to the Agent pursuant to subsection 5.1(a).
"Moody's" shall mean Moody's Investors Service, Inc. and its
successors.
"Multiemployer Plan" shall mean a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"New Bank" shall have the meaning set forth in subsection 9.10.
"1993 Annual Report" shall mean the Company's annual report to
stockholders for the fiscal year ended December 31, 1993.
"Non-U.S. Subsidiary" shall mean each Subsidiary other than a
U.S. Subsidiary.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any
successor corporation.
"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, a
trust, an unincorporated association, a joint venture or other entity
or a government or any agency or political subdivision thereof.
"Plan" shall mean any pension plan which is covered by Title IV
of ERISA and in respect of which the Company or a Commonly Controlled
Entity is an "employer" as defined in Section 3(5) of ERISA.
"Prohibited Transaction" shall mean any "prohibited transaction"
as defined in Section 406 of ERISA or Section 4975 of the Code.
"Rating Agencies" shall mean the collective reference to D&P,
Fitch, Moody's and S&P.
"Real Estate Business" shall mean the acquisition, development,
leasing, financing, management, maintenance and disposition of real
property, including, without limitation, automotive dealership
facilities and dealership site control arrangements.
"Receivables" shall mean, at any date, any and all amounts owing
to the Company and its Subsidiaries on account of receivables arising
out of their conduct of their business.
"Reference Banks" shall mean Chemical, NBD Bank, N.A., Royal Bank
of Canada and Swiss Bank Corporation; provided, that, for the purposes
of determining the Eurodollar Rate with respect to any seven-day
Interest Period, Chemical shall be the sole Reference Bank.
"Reportable Event" shall mean any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder.
"Required Banks" shall mean, at any date, Banks having at least
51% of the aggregate amount of the Commitments at such date or, if the
Commitments have been terminated, Banks holding at least 51% of the
outstanding principal amount of the Loans hereunder.
"Requirement of Law" shall mean, as to any Person, the
Certificate of Incorporation and By-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of
its property is subject.
"Responsible Officer" shall mean, at any particular time, the
Chairman of the Board, the President, the chief financial officer, the
Vice President - Corporate Finance and Development, the Treasurer or
the Controller of the Company.
"Revolving Credit Agreement" shall mean (i) the Revolving Credit
Agreement, dated as of May 23, 1994, among the Company, the financial
institutions from time to time parties thereto, the Co-Agents parties
thereto, Chemical Securities Inc., as arranger, and Chemical Bank, as
agent, as amended, supplemented, or otherwise modified from time to
time or (ii) if such Revolving Credit Agreement is refinanced,
refunded or otherwise replaced by another bank revolving credit
agreement, such agreement, as amended, supplemented or otherwise
modified from time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
McGraw-Hill, and its successors.
"Senior Debt" shall mean, at any date, all Indebtedness of the
Company except Subordinated Debt and Capital Notes.
"Significant Subsidiary" shall mean at the time of any
determination thereof (a) any Finance Subsidiary and (b) any other
Subsidiary the assets of which constitute at least 5% of the
consolidated assets of the Company and its Subsidiaries as stated on
the consolidated financial statements of the Company and its
Subsidiaries for the most recently ended fiscal quarter of the
Company, provided, that the term "Significant Subsidiary" shall not
include any Special Purpose Subsidiary.
"Single Employer Plan" shall mean any Plan which is not a
Multiemployer Plan.
"Special Purpose Subsidiary" shall mean any Subsidiary created
for the sole purpose of purchasing assets from the Company or any
Finance Subsidiary with the intention and for the purpose of using
such assets in a securitization transaction.
"Status" shall mean, as to the Company, the existence of Level I
Status, Level II Status, Level III Status, Level IV Status or Level V
Status, as the case may be. For the purposes of this definition,
"Status" will be set at the lowest Level assigned to the Company by
any Rating Agency, unless only one Rating Agency has assigned such
Level to the Company, in which case the Company's Status will be set
at the second lowest Level assigned to the Company by any Rating
Agency.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator
of which is the number one minus the aggregate of the maximum
applicable reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established
by the Federal Reserve Board and any other banking authority to which
Chemical is subject with respect to the Base CD Rate (as such term is
used in the definition of "Base Rate"), for new negotiable nonpersonal
time deposits in dollars of over $100,000 with maturities
approximately equal to three months. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change
in any reserve percentage.
"Subordinated Debt" shall mean, at any date, all Indebtedness of
the Company which is subordinated to Senior Debt at least to the
extent that its 6-7/8% Subordinated Notes due 1987 were subordinated
to Senior Debt as of April 9, 1980, excluding Capital Notes.
"Subsidiary" shall mean any corporation of which the Company or
one or more Subsidiaries or the Company and one or more Subsidiaries
shall at the time own shares of any class or classes (however
designated) having voting power for the election of at least a
majority of the members of the board of directors (or other governing
body) of such corporation.
"Termination Date" shall mean as to any Bank the "Termination
Date" as defined in the Chrysler Agreement.
"Transferred Commitment" shall have the meaning set forth in
subsection 2.18.
"Type" shall mean, as to any Loan hereunder, its nature as a Base
Rate Loan or a Eurodollar Loan.
"U.S. Subsidiary" shall mean each Domestic Subsidiary which is
not a Canadian Corporation.
"Utilization" shall mean, for any Utilization Period, the
percentage equivalent of a fraction (a) the numerator of which is the
average daily principal amount of Loans outstanding during such
Utilization Period and (b) the denominator of which is the average
daily amount of the aggregate Commitments of all Banks during such
Utilization Period.
"Utilization Period" shall mean (a) each fiscal quarter of the
Company and (b) any portion of a fiscal quarter of the Company ending
on the Final Date.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified, all terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto.
(b) As used herein, and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to the Company
and its Subsidiaries not defined in subsection 1.1, and accounting terms
partly defined in subsection 1.1 to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
SECTION 2. AMOUNT AND TERMS OF THE COMMITMENTS
2.1 The Commitments. (a) Subject to the terms and conditions
hereof, each Bank severally agrees to make loans ("Loans") to the Company
from time to time during the Commitment Period in an aggregate principal
amount at any one time outstanding not to exceed such Bank's Transferred
Commitment at such time set opposite such Bank's name in the most recent
effective notice delivered by Chrysler pursuant to subsection 2.17 of the
Chrysler Agreement. During the Commitment Period, the Company may use such
Commitment by borrowing, prepaying or repaying the Loans of such Bank, in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) Loans hereunder may be Base Rate Loans or Eurodollar Loans,
or part Base Rate Loans and part Eurodollar Loans, as determined by the
Company and notified to the Agent in accordance with subsection 2.2,
provided that no Eurodollar Loans shall be made after the date which is
seven days prior to the Termination Date.
2.2 Procedure for Borrowing. (a) The Company may borrow under
the Commitments during the Commitment Period on any Business Day, provided
that the Company shall give the Agent irrevocable notice (which notice must
be received by the Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the requested Borrowing Date, if all or any part of
the requested Loans are to be initially Eurodollar Loans, and (ii) one
Business Day prior to the requested Borrowing Date, otherwise) specifying
(A) the amount to be borrowed, (B) the requested Borrowing Date, (C)
whether the borrowing is to be a Eurodollar Loan or a Base Rate Loan or a
combination thereof, and (D) if such borrowing is to be entirely or partly
a Eurodollar Loan, the length of the Interest Period for such Eurodollar
Loan. Upon receipt of such notice, the Agent shall promptly notify each
Bank thereof. Not later than 2:00 P.M., New York City time, on the
Borrowing Date specified in such notice, each Bank shall (subject to
subsection 9.3(b)) deposit in its Clearing Account an amount in immediately
available funds equal to the amount of the Loan to be made by such Bank.
The Agent shall, pursuant to subsection 9.3(a), cause such amount to be
withdrawn from each such Clearing Account and shall make the aggregate
amount so withdrawn available to the Company by depositing the proceeds
thereof in the account of the Company with the Agent on the date such Loans
are made for transmittal by the Agent upon the Company's request. Each
borrowing pursuant to the Commitments shall be in an aggregate principal
amount of the lesser of (i) $25,000,000 or an integral multiple of
$1,000,000 in excess thereof or (ii) the then Available Transferred
Commitments, provided that, with respect to any borrowing of Eurodollar
Loans, after giving effect thereto, subsection 2.6 shall not have been
contravened.
(b) Unless the Agent shall have received notice from a Bank
prior to a Borrowing Date that such Bank will not make available to the
Agent such Bank's ratable portion of such borrowing through such Bank's
Clearing Account, the Agent may assume that such Bank has made such portion
available to the Agent through such Bank's Clearing Account on the date of
such borrowing in accordance with subsection 2.2(a) and the Agent may, in
reliance upon such assumption, make available to the Company on such date a
corresponding amount. If the Agent does, in such circumstances, make
available to the Company such amount, such Bank shall within three Business
Days following such Borrowing Date make such ratable portion available to
the Agent, together with interest thereon for each day from and including
such Borrowing Date that such ratable portion was not made available, to
but excluding the date such Bank makes its share of such borrowing
available to the Agent, at the Effective Federal Funds Rate. If such
amount is so made available, such payment to the Agent shall constitute
such Bank's Loan on such Borrowing Date for all purposes of this Agreement.
If such amount is not so made available to the Agent, then the Agent shall
notify the Company of such failure and on the fourth Business Day following
such Borrowing Date, the Company shall pay to the Agent such ratable
portion, together with interest thereon for each day that the Company had
the use of such ratable portion at the Effective Federal Funds Rate.
Nothing contained in this subsection 2.2(b) shall relieve any Bank which
has failed to make available its ratable portion of any borrowing hereunder
from its obligation to do so in accordance with the terms hereof.
(c) The failure of any Bank to make the Loan to be made by it on
any Borrowing Date shall not relieve any other Bank of its obligation, if
any, hereunder to make its Loan on such Borrowing Date, but no Bank shall
be responsible for the failure of any other Bank to make the Loan to be
made by such other Bank on such Borrowing Date.
2.3 Repayment of Outstanding Loans. The Company shall repay all
outstanding Loans (together with all accrued unpaid interest thereon) on
the Termination Date.
2.4 Evidence of Debt. (a) Each Bank shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Company to the appropriate lending office of such Bank
resulting from each Loan made by such lending office of such Bank from time
to time, including the amounts of principal and interest payable and paid
to such lending office of such Bank from time to time under this Agreement.
(b) The Agent shall maintain the Register pursuant to subsection
9.7(f), and a subaccount for each Bank, in which Register and subaccounts
(taken together) shall be recorded (i) the amount of each Loan made
hereunder, the Type of each Loan made and the Interest Period (if any)
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Company to each Bank
hereunder and (iii) the amount of any sum received by the Agent hereunder
from the Company and each Bank's share thereof.
(c) The entries made in the Register and accounts maintained
pursuant to paragraphs (a) and (b) of this subsection 2.4 shall, to the
extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Company therein recorded;
provided, however, that the failure of any Bank or the Agent to maintain
such account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Company to
repay (with applicable interest) the Loans made to the Company by such Bank
in accordance with the terms of this Agreement.
2.5 Prepayments. The Company may, at any time and from time to
time, prepay the Loans hereunder, in whole or in part, without premium or
penalty, upon prior notice to the Agent (which notice must be received by
the Agent prior to 10:00 A.M., New York City time (i) three Business Days
prior to the repayment date in the case of Eurodollar Loans and (ii) one
Business Day prior to the repayment date otherwise) specifying the date and
amount of prepayment, and whether the prepayment is of Eurodollar Loans,
Base Rate Loans or a combination thereof, and, if a combination thereof,
the amount allocable to each, provided that, each prepayment of Eurodollar
Loans on a day other than the last day of the related Interest Period shall
require the payment of any amounts payable by the Company pursuant to
subsection 2.16. Upon receipt of any such notice, the Agent shall
promptly notify each Bank thereof. Any such notice shall be irrevocable
and the payment amount specified in such notice shall be due and payable on
the date specified, together with accrued interest to such date on the
amount prepaid. Partial prepayments shall be in an aggregate principal
amount of $25,000,000 or a multiple of $1,000,000 in excess thereof, and
after giving effect thereto subsection 2.6 shall not have been contravened.
2.6 Minimum Amount of Eurodollar Tranches. All borrowings,
payments, prepayments, continuations and conversions hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising any Eurodollar Tranche shall not be less than $50,000,000.
2.7 Interest Rate and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period therefor on
the unpaid principal amount thereof at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period in accordance with the
terms hereof plus the Applicable Eurodollar Margin.
(b) The Base Rate Loans shall bear interest for each day on the
unpaid principal amount thereof, at a rate per annum equal to the Base Rate
determined for such day plus the Applicable Base Rate Margin in effect for
such day.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum which is (x) in the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions
of this subsection 2.7 plus 2% or (y) in the case of any overdue interest
or other amount, the rate described in subsection 2.7(b) plus 2%, in each
case from the date of such non-payment to (but excluding) the date on which
such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears (i) with respect to
Eurodollar Loans having an Interest Period of three months or less, on the
last day of such Interest Period, (ii) with respect to Eurodollar Loans
having an Interest Period longer than three months, on each day which is
three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period, (iii) with
respect to Base Rate Loans, on the last day of each March, June, September
and December, and (iv) with respect to all Loans, upon each repayment,
prepayment or conversion thereof; provided that interest accruing pursuant
to paragraph (c) of this subsection shall be payable on demand. The amount
of interest on any Loans to be paid on any date as specified above shall in
each case be determined under the assumption that the Utilization for the
Utilization Period(s) during which such interest accrued was less than 33-
1/3%. On the first Business Day following the last day of each Excess
Utilization Period, the Company shall pay to the Agent, for the benefit of
the Banks, an additional amount of interest equal to the excess (if any) of
(i) the amount of interest which accrued during such Utilization Period
after giving effect to the actual Utilization for such Utilization Period
(whether or not such accrued interest was actually payable during such
Utilization Period) over (ii) the amount of interest which would have
accrued during such Utilization Period if the Utilization during such
Utilization Period had been less than 33-1/3%.
2.8 Mandatory Repayments. The Company, without notice or
demand, shall immediately repay the Loans hereunder to the extent that the
aggregate amount thereof exceeds the Commitments from time to time in
effect.
2.9 Conversion and Continuation Options. (a) The Company may
elect from time to time to convert Eurodollar Loans to Base Rate Loans, by
giving the Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may
only be made on the last day of an Interest Period with respect thereto.
The Company may elect from time to time to convert Base Rate Loans to
Eurodollar Loans by giving the Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Agent shall
promptly notify each Bank thereof. All or any part of outstanding
Eurodollar Loans and Base Rate Loans may be converted as provided herein,
provided that (i) no Base Rate Loan may be converted into a Eurodollar Loan
when any Event of Default has occurred and is continuing and the Agent has
or the Required Banks have determined in its or their sole discretion that
such conversion is not appropriate, (ii) any such conversion may only be
made if, after giving effect thereto, subsection 2.6 shall not have been
contravened and (iii) no Base Rate Loan may be converted into a Eurodollar
Loan after the date that is seven days prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Company giving irrevocable notice to the Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be applicable
to such Loans, provided that no Eurodollar Loan may be continued as such
(i) when any Event of Default has occurred and is continuing and the Agent
has or the Required Banks have determined in its or their sole discretion
that such continuation is not appropriate, (ii) if, after giving effect
thereto, subsection 2.6 would be contravened or (iii) after the date that
is seven days prior to the Termination Date and provided, further, that if
the Company shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to Base Rate
Loans on the last day of such then expiring Interest Period.
2.10 Computation of Interest. (a) Interest (other than
interest calculated on the basis of the Prime Rate) shall be calculated on
the basis of a 360-day year, for the actual days elapsed. Interest
calculated on the basis of the Prime Rate shall be calculated on the basis
of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The Agent shall, as soon as practicable, notify the Company and
the Banks of each determination of the Eurodollar Rate with respect to
Eurodollar Loans. Any change in the interest rate in respect of a Loan
resulting from a change in the Base Rate, the Applicable Base Rate Margin
or the Applicable Eurodollar Margin shall become effective as of the
opening of business on the day on which a change in the Base Rate shall
become effective or such Applicable Base Rate Margin or Applicable
Eurodollar Margin changes as provided herein, as the case may be. The
Agent shall notify the Company and the Banks of the effective date and the
amount of each such change in the Base Rate.
(b) Each determination, pursuant to and in accordance with any
provision of this Agreement, of an interest rate applicable to a Eurodollar
Loan for any Interest Period by the Agent, and each determination by a
Reference Bank of a rate with respect to a Eurodollar Loan for any Interest
Period to be notified to the Agent pursuant to the definition of
"Eurodollar Rate" shall be conclusive and binding on the Company and the
Banks in the absence of manifest error. The Agent shall, at the request of
the Company, deliver to the Company a statement showing any quotations
given by the Reference Banks and the computations used by the Agent in
determining any interest rate pursuant to subsection 2.7(a).
(c) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the Commitments), or, as the case may
be, Loans made by it hereunder are assigned, or prepaid or repaid
(otherwise than on the ratable prepayment or repayment of the Loans among
the Banks) for any reason whatsoever, such Reference Bank shall thereupon
cease to be a Reference Bank and, if as a result of the foregoing, there
shall be only one Reference Bank remaining, then the Agent (after
consultation with the Company and the Banks) shall, as soon as practicable
thereafter, by notice to the Company and the Banks, designate another Bank
that is willing to act as a Reference Bank so that there shall at all times
be at least two Reference Banks. In acting to so designate another Bank to
serve as a Reference Bank, the Agent will use its best efforts to ensure
that one Reference Bank will, at all times, be a Bank that has its
headquarters office located outside the United States.
(d) If any of the Reference Banks shall be unable or shall
otherwise fail to provide notice of a rate to the Agent upon its request
with respect to a Eurodollar Loan, the Eurodollar Rate shall be determined
on the basis of rates provided in notices of the remaining Reference Banks.
2.11 Inability to Determine Eurodollar Rate. In the event that
(a) the Agent determines (which determination shall be conclusive and
binding upon the Company) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate in respect of any Eurodollar Loans, or (b)
the Required Banks determine (which determination shall be conclusive and
binding upon the Company) and shall notify the Agent that the rates of
interest referred to in the definition of "Eurodollar Rate" as the basis
upon which the rate of interest for Eurodollar Loans is to be determined do
not adequately cover the cost to the Banks of making or maintaining
Eurodollar Loans, in each case with respect to proposed Loans that the
Company has requested to be made as a Eurodollar Loan, the Agent shall
forthwith give facsimile transmission or other written notice of such
determination to the Company and the Banks at least one Business Day prior
to the requested Borrowing Date for such Eurodollar Loan. If such notice
is given, any requested borrowing of a Eurodollar Loan shall be made as a
Base Rate Loan. Until such notice has been withdrawn by the Agent, no
further Eurodollar Loans shall be made.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing
(except borrowings pursuant to subsection 2.13) by the Company from the
Banks and any reduction of the amount of the Commitments of the Banks
hereunder (except for the reduction or termination of a particular Bank's
Commitment pursuant to subsection 2.17) shall be made pro rata according to
the amounts of the then existing Commitments. Each payment (including each
prepayment) by the Company on account of principal and interest (except for
payments to a particular Bank pursuant to subsection 2.13, 2.14, 2.16, or
2.17), shall be made on a pro rata basis according to the amounts of the
then outstanding Loans of the Banks hereunder. All payments (including
prepayments) by the Company shall be made without setoff or counterclaim to
the Agent for the account of the Banks at the office of the Agent referred
to in subsection 9.2 in Dollars and in immediately available funds. The
Agent shall promptly distribute such payments to each Bank entitled to
receive a portion thereof by causing such Bank's portion of such payment to
be deposited in such Bank's Clearing Account. If any payment hereunder
(other than a payment in respect of a Eurodollar Loan) becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment into
another calendar month in which event such payment shall be made on the
immediately preceding Business Day. In the case of any extension of any
payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.
(b) Unless the Agent shall have received notice from the Company
prior to the date on which any payment is due to the Banks hereunder that
the Company will not make such payment in full, the Agent may assume that
the Company has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due to such
Bank. If and to the extent the Company shall not have so made such payment
in full to the Agent, each Bank shall repay to the Agent forthwith on
demand such amount distributed to such Bank together with interest thereon,
for each day from and including the date such amount is distributed to such
Bank to but excluding the date such Bank repays such amount to the Agent at
the Effective Federal Funds Rate for each such day. Nothing contained in
this subsection 2.12(b) shall relieve the Company from its obligations to
make payments on all amounts due hereunder in accordance with the terms
hereof.
2.13 Illegality. Notwithstanding any other provision herein, if
any law, regulation, treaty or directive or any change therein or in the
interpretation or application thereof, shall make it unlawful for any Bank
to make or maintain Eurodollar Loans as contemplated by this Agreement, (a)
the commitment of such Bank hereunder to make Eurodollar Loans shall
forthwith be cancelled and (b) such Bank's Loans then outstanding as
Eurodollar Loans, if any, shall, if required by law and if such Bank so
requests, be converted automatically to Base Rate Loans on the date
specified by such Bank in such notice. To the extent that such affected
Eurodollar Loans are made as (or converted into) Base Rate Loans, all
payments of principal which would otherwise be applied to such Eurodollar
Loans shall be applied instead to such Bank's Base Rate Loans. The Company
hereby agrees promptly to pay any Bank, upon its demand, any additional
amounts necessary to compensate such Bank for any costs incurred by such
Bank in making any conversion in accordance with this subsection 2.13,
including, but not limited to, any interest or fees payable by such Bank to
lenders of funds obtained by it in order to make or maintain its Eurodollar
Loans hereunder (such Bank's notice of such costs, as certified to the
Company through the Agent, to be conclusive absent manifest error).
2.14 Increased Costs. (a) In the event that any law,
regulation, treaty or directive or any change therein or in the
interpretation or application thereof or compliance by any Bank with any
request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority enacted or made subsequent to
the date hereof:
(i) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Bank; or
(ii) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank
of making, or maintaining advances or extensions of credit or to reduce any
amounts receivable hereunder (such increase in cost or reduction in amounts
receivable, "Increased Costs") then, in any such case, the Company shall
promptly pay to the Agent for the account of such Bank, upon the written
demand of such Bank to the Company (with a copy to the Agent), so long as
such Increased Costs are not otherwise included in the amounts required to
be paid to such Bank pursuant to subsection 2.13, 2.14(b), 2.16, or 2.17,
any additional amounts necessary to compensate such Bank for such Increased
Costs which such Bank deems to be material as determined by such Bank with
respect to its Eurodollar Loans. If a Bank becomes entitled to claim any
additional amounts pursuant to this subsection 2.14(a), it shall promptly
notify the Company, through the Agent, of the event by reason of which it
has become so entitled. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by a Bank, through the Agent,
to the Company shall be conclusive in the absence of manifest error.
(b) Upon notice from any Affected Bank (as hereinafter defined),
the Company shall pay to the Agent for the account of such Affected Bank an
additional amount for each Eurodollar Loan of such Affected Bank, payable
on the last day of the Interest Period with respect thereto, equal to
P X [[R / (1.00 - r)] - R] X [T / 360]
Where P = the principal amount of such Eurodollar Loan of such Bank;
R = the Eurodollar Rate (expressed as a decimal) for such Interest
Period;
T = the number of days in such Interest Period during which such Bank
was an "Affected Bank"; and
r = the aggregate of rates (expressed as a decimal) of reserve
requirements current on the date two Business Days prior to the
beginning of such Interest Period (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any
regulations of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto, as now and
from time to time hereafter in effect, dealing with reserve
requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of the
Federal Reserve Board) maintained by a member bank of the Federal
Reserve System.
The term "Affected Bank" shall mean any Bank party to this
Agreement that is (i) organized under the laws of the United States or any
State thereof or (ii) a bank organized under laws other than those of the
United States of America or a State thereof that is funding its Eurodollar
Loans through a branch or agency located in the United States of America.
Each Bank agrees to notify the Agent (A) by appropriate notification on its
Addendum in the case of each original Bank party hereto and (B) in the case
of each New Bank, and each Assignee (as defined in the Chrysler Agreement)
that is not already a Bank, upon its becoming a party hereto, whether or
not it is an Affected Bank, and of any subsequent change of status,
disclosing the effective date of such change.
2.15 Transfer of Eurodollar Loans. Upon the occurrence of any
of the events specified in subsection 2.13 or 2.14(a), each Bank whose
Eurodollar Loans are affected by any such event agrees that it will
transfer its Eurodollar Loans affected by any such event to another branch
office (or, if such Bank so elects, to an affiliate) of such Bank, provided
that such transfer shall be made only if such Bank shall have determined in
good faith (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) that, (a) on the basis of existing
circumstances, such transfer will avoid such events and will not result in
any additional costs, liabilities or expenses to such Bank or to the
Company and (b) such transfer is otherwise consistent with the interests of
such Bank.
2.16 Indemnity. The Company agrees to indemnify each Bank and
to hold such Bank harmless from all losses or expenses (including, but not
limited to, any such loss or expense arising from interest or fees payable
by such Bank to lenders of funds obtained by it in order to maintain its
Eurodollar Loans hereunder, but excluding loss of the Applicable Eurodollar
Margin) which such Bank may sustain or incur as a consequence of (a)
failure by the Company in making any payment when due (whether by
acceleration or otherwise) of the principal amount of or interest on the
Eurodollar Loans of such Bank, (b) failure by the Company in making a
borrowing of Eurodollar Loans, or a conversion into or continuation of
Eurodollar Loans, after the Company has given a notice requesting or
accepting the same in accordance with the provisions of this Agreement, (c)
failure by the Company in making any prepayment after the Company has given
a notice in accordance with subsection 2.5 or (d) a prepayment of a
Eurodollar Loan on a day that is not the last day of the Interest Period
with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued
on the amount so prepaid, or not so borrowed, converted or continued, for
the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of the relevant Interest Period (or
proposed Interest Period), in each case at the applicable rate of interest
for such Loans provided for herein (excluding, however, the Applicable
Eurodollar Margin) over (ii) the amount of interest (as reasonably
determined by such Bank) which would have accrued to such Bank on such
amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. The agreements in this
subsection 2.16 shall survive the payment of the Loans and all other
amounts payable hereunder.
2.17 Taxes. (a) In the event that the adoption of any law,
regulation, treaty or directive or any change therein or in the
interpretation or application thereof, in each case after the date hereof,
shall require any Taxes (as hereinafter defined) to be withheld or deducted
from any amount payable to any Bank under this Agreement, upon notice by
such Bank to the Company (with a copy to the Agent) to the effect that (i)
as a result of the adoption of such law, rule, regulation, treaty or
directive or a change therein or in the interpretation thereof, Taxes are
being withheld or deducted from amounts payable to such Bank under this
Agreement and (ii) such Bank has taken all action required to be taken by
it to avoid the imposition of such Taxes pursuant to paragraph (c) of this
subsection 2.17 prior to demanding indemnification under this paragraph
(a), the Company will pay to the Agent for the account of such Bank
additional amounts so that such additional amounts, together with amounts
otherwise payable under this Agreement, will yield to such Bank, after
deduction from such increased amount of all Taxes required to be withheld
or deducted therefrom, the amount stated to be payable under this
Agreement. The term "Taxes" shall mean all net income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
imposed, levied, collected, withheld or assessed by any country (or by any
political subdivision or taxing authority thereof or therein), excluding,
with respect to any Bank, net income and franchise taxes imposed with
respect to net income of any country (or any political subdivision or
taxing authority thereof or therein) where such Bank is organized or, in
respect of such Bank's Eurodollar Loans, by the country (or any political
subdivision or tax authority thereof or therein) where such Bank's
Eurodollar Loans are booked and, in respect of such Bank's Base Rate Loans,
by the country (or any political subdivision or tax authority thereof or
therein) where such Bank's Base Rate Loans are booked. If the Company
fails to pay any Taxes when due following notification by any Bank as
provided above, the Company shall indemnify such Bank for any incremental
taxes, interest or penalties that may become payable by any Bank as a
result of any such failure by the Company to make such payment. The
Company may, upon payment by the Company to any Bank claiming
indemnification under this paragraph (a) of any amount payable by the
Company to such Bank, elect by not less than four Business Days' prior
written notice to such Bank to terminate the Commitment of such Bank and
prepay the Loans of such Bank outstanding hereunder on the next day upon
which a prepayment may be made pursuant to subsection 2.5.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to
the Company and the Agent (i) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or any successor applicable
form, as the case may be, and (ii) an Internal Revenue Service Form W-8 or
W-9 or any successor form. Each such Bank also agrees to deliver to the
Company and the Agent two further copies of the said Form 1001 or 4224 and
Form W-8 or W-9, or successor applicable forms or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it to the Company,
and such extensions or renewals thereof as may reasonably be requested by
the Company or the Agent, unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred
prior to the date on which any such delivery would otherwise be required
which renders all such forms inapplicable or which would prevent such Bank
from duly completing and delivering any such form with respect to it and
such Bank so advises the Company and the Agent. Such Bank shall certify
(i) in the case of Form 1001 or 4224, that it is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) in the case of a Form W-8 or
W-9, that it is entitled to an exemption from United States backup
withholding tax.
(c) No Bank may request indemnification for any Taxes from the
Company under paragraph (a) of this subsection 2.17 to the extent that such
Taxes would have been avoided or reduced by such Bank's transfer of its
Loans affected by such event to another office of such Bank (or to an
affiliate of such Bank), by such Bank's properly claiming the benefit of
any exemption from or reduction of such Taxes (whether provided by statute,
treaty or otherwise) including, without limitation, by delivering the forms
required by paragraph (b) of this subsection 2.17, or by such Bank's taking
any other action which in its judgment is reasonable to avoid or reduce
such Taxes, provided that such Bank shall not be required to (i) take any
action which in the reasonable judgment of such Bank could directly or
indirectly result in any increased cost or expense or in any loss of
opportunity to such Bank unless the Company shall have provided to such
Bank indemnity or reimbursement therefor in form and substance reasonably
satisfactory to such Bank or (ii) claim or apply any tax credit against
such Taxes.
(d) Within 30 days after the payment by the Company of any
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, withheld or deducted from any amount payable to
any Bank under this Agreement, and irrespective of whether such Bank is
entitled to demand indemnification in respect thereof under paragraph (a)
above, the Company will furnish to such Bank (with a copy to the Agent),
the original or a certified copy of a receipt evidencing payment thereof.
2.18 Transferred Commitment. (a) The Company and each Bank
agree that Chrysler may by giving four days' notice to the Agent, each Bank
and the Company (which notice shall, upon receipt by the Agent supersede
and cancel all prior notices hereunder), consent to the transfer to and
borrowing by the Company hereunder of such portion of the Available
Company/CFC Commitments (as such term is defined in the Chrysler Agreement)
as may be specified in such notice (as to each Bank, its "Transferred
Commitment"; collectively for all the Banks, the "Transferred
Commitments"). As of the Effective Date, the Transferred Commitments shall
be zero, unless Chrysler shall have delivered a notice pursuant to the
foregoing sentence at least four days prior to the Effective Date. Each
notice given pursuant to this subsection shall indicate the total
Transferred Commitments and as to each Bank, its pro rata Transferred
Commitment.
(b) The Company also agrees that Chrysler may, by giving thirty
days' written notice to the Agent, each Bank and the Company, withdraw any
consent to the transfer to and borrowing by the Company given in accordance
with subsection 2.18(a) in respect of any portion of the Transferred
Commitments not utilized by the Company as of the date of such notice.
2.19 Use of Proceeds. The proceeds of the Loans hereunder shall
be used by the Company for general corporate purposes.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and to
make the Loans herein provided for, the Company hereby represents and
warrants to each Bank that:
3.1 Financial Condition. The consolidated balance sheet of the
Company and its Subsidiaries as at December 31, 1993 and the related
consolidated statements of net earnings and cash flows for the fiscal year
ended on such date, certified by Deloitte & Touche, copies of which have
been delivered to each Bank, present fairly the consolidated financial
position of the Company and its Subsidiaries as at such date, and the
consolidated results of their operations and cash flows for the fiscal year
then ended. The unaudited consolidated balance sheet of the Company and
its Subsidiaries as at March 31, 1994 and the related consolidated
statements of net earnings and cash flows for the three-month period ended
on such date, certified by a Responsible Officer, copies of which have been
delivered to each Bank, present fairly the consolidated financial condition
of the Company and its Subsidiaries as at such date, and the consolidated
results of their operations for the three-month period then ended (subject
to normal year-end audit adjustments). Such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP. As at March 31, 1994, neither the Company nor any of
its Subsidiaries had any asset, liability, contingent obligation, liability
for taxes, long-term lease or unusual forward or long-term commitment
material to the financial condition of the Company and its Subsidiaries
taken as a whole, which was not reflected in the foregoing statements or in
the notes thereto.
3.2 No Change. Between December 31, 1993 and the Effective
Date, there has been no material adverse change in the business, operations
or financial condition of the Company and its Subsidiaries taken as a
whole.
3.3 Corporate Existence. The Company (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Michigan, and (b) is duly qualified as a foreign corporation to do
business and is in good standing in each of the jurisdictions in which the
character of the properties owned or held under lease by it or the nature
of business transacted by it makes such qualification necessary, except in
the case of this clause (b) to the extent that the failure to be so
qualified or in good standing would not have a material adverse effect on
the business, operations or financial condition of the Company and its
Subsidiaries taken as a whole.
3.4 Corporate Authorization; No Violation. The execution,
delivery and performance by the Company of this Agreement are within the
corporate powers of the Company, have been duly authorized by all necessary
corporate action, and do not contravene any Requirement of Law or
Contractual Obligation of the Company, except to the extent that such
contravention would not have a material adverse effect on the business,
operations or financial condition of the Company and its Subsidiaries taken
as a whole or on the ability of the Company to fulfill its obligations
under this Agreement or on the rights and remedies of the Agent and the
Banks hereunder.
3.5 Government Authorization. No authorization or approval or
other action by, and no notice to or filing with, any Governmental
Authority is required to be obtained or made by the Company for the due
execution, delivery and performance by the Company of this Agreement.
3.6 Federal Regulations. Neither the Company nor any of its
Subsidiaries is principally engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U, T, G or X issued by the Federal Reserve Board), and no
proceeds of any borrowing hereunder will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.
3.7 Enforceable Obligations. This Agreement has been duly
executed and delivered on behalf of the Company, and this Agreement
constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by principles of equity, whether considered
in a proceeding in equity or at law.
3.8 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Company, threatened by or against the Company
or any of its Subsidiaries or against any of its or their respective
properties or revenues, in which there is a reasonable likelihood of an
adverse determination (a) with respect to this Agreement or any of the
transactions contemplated hereby, if such adverse determination would have
a material adverse effect on the ability of the Company to fulfill its
obligations under this Agreement or on the rights and remedies of the Agent
and the Banks hereunder or (b) which would, if adversely determined, have a
material adverse effect on the business, operations, property or financial
condition of the Company and its Subsidiaries taken as a whole.
3.9 Taxes. Each of the Company and its Subsidiaries has filed
or caused to be filed all material tax returns which to the knowledge of
the Company are required to be filed, and has paid all material taxes shown
to be due and payable on said returns or on any assessments made against it
or any of its property and all other taxes, fees and other charges imposed
on it or any of its property by any Governmental Authority (other than
those the amount or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP, if any, have been provided on the books of the
Company or its Subsidiaries, as the case may be).
3.10 ERISA. No Prohibited Transaction or Accumulated Funding
Deficiency (other than those that have been waived by the Internal Revenue
Service) has occurred since July 1, 1974 with respect to any Plan and no
Reportable Event has occurred since July 1, 1974 with respect to any Plan
which could in either case subject the Company or any of its Subsidiaries
to any tax, penalty or other liabilities in the aggregate material in
relation to the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole. The
projected benefit obligations with respect to all benefits, both vested and
nonvested, under all Single Employer Plans (based on the most recently
available actuarial information and computed in accordance with Statement
of Accounting Standards No. 87) maintained by the Company or a Commonly
Controlled Entity did not exceed, at December 31, 1993, the fair value of
the assets of such Plans by more than $2,500,000,000.
3.11 Investment Company Act; Other Regulations. The Company is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended. The Company is not subject to regulation under any Federal or
state statute or regulation which limits its ability to incur Indebtedness.
3.12 Ownership of Property; Liens. The Company and its U.S.
Subsidiaries have good title in fee simple to or valid leasehold interests
in their respective property that is material to the operation of their
respective businesses, subject to defects in title and leasehold and other
interests which are not material to the business, operations and financial
condition of the Company and its Subsidiaries taken as a whole, and none of
such property is subject to any Lien other than Liens excepted under
subsection 6.7.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The effectiveness of this
Agreement is subject to the satisfaction of the following conditions
precedent:
(a) Execution of Agreement and Addenda. (i) This Agreement
shall have been executed and delivered by a duly authorized officer of
each of the Company and the Agent and (ii) the Agent shall have
received an executed Addendum (or a copy thereof by facsimile
transmission) from each Person listed on Schedule I.
(b) Closing Certificate. The Agent shall have received a
certificate of the Company, dated the Effective Date, substantially in
the form of Exhibit E, with appropriate insertions, satisfactory in
form and substance to the Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Company,
and attaching the documents referred to in subsection 4.1(c) and (d).
(c) Corporate Proceedings of the Company. The Agent shall have
received a copy of the resolutions, in form and substance satisfactory
to the Agent, of the Board of Directors of the Company (or a duly
authorized committee thereof) authorizing (i) the execution, delivery
and performance of this Agreement and (ii) the borrowings contemplated
hereunder.
(d) Corporate Documents. The Agent shall have received true and
complete copies of the certificate of incorporation and by-laws of the
Company.
(e) Legal Opinions. The Agent shall have received the following
executed legal opinions, with a copy for each Bank:
(i) the executed legal opinion of Simpson Thacher &
Bartlett, counsel to the Agent, substantially in the form of
Exhibit A-1; and
(ii) the executed legal opinion of Allan L. Ronquillo,
Esq., General Counsel of the Company, substantially in the form
of Exhibit A-2.
The Agent shall notify the Banks of the Effective Date promptly after the
occurrence thereof.
4.2 Conditions to All Loans. The obligation of each Bank to
make any Loan on or after the Effective Date to be made by it hereunder is
subject to the satisfaction of the conditions precedent described in
clauses (a) and (b) below:
(a) Representations and Warranties. The representations and
warranties made by the Company herein shall be correct in all material
respects on and as of the Borrowing Date for such Loan as if made on
and as of such date, except for any such representations or warranties
which relate solely to an earlier date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such Borrowing Date
or after giving effect to the Loans to be made on such Borrowing Date.
Each borrowing by the Company hereunder shall constitute a
representation and warranty by the Company as of the date of each such
borrowing that the conditions in this Section 4 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby covenants and agrees that so long as the
Commitments remain in effect, any Loan made hereunder remains outstanding
and unpaid or any other amount is owing to any Bank or the Agent hereunder:
5.1 Financial Statements, etc. (a) The Company will furnish to
each Bank:
(i) as soon as available and in any event within 60 days after
the end of the first, second and third quarterly accounting periods in
each fiscal year of the Company, copies of financial statements of the
Company and its Subsidiaries consisting of, at a minimum, balance
sheets of the Company and its Subsidiaries on a consolidated basis as
of the end of such quarterly accounting period, and related statements
of net earnings and cash flows for the portion of such fiscal year
ended with the last day of such quarterly accounting period, all in
reasonable detail (and, without limiting the generality of this
paragraph (a)(i), setting forth, therein or in a separate certificate,
as a separate item, the amount of interest expense during such period)
and prepared and certified (subject to year-end audit adjustments) by
a Responsible Officer and stating in comparative form the respective
figures for the corresponding date and period in the previous fiscal
year;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, copies of financial
statements of the Company and its Subsidiaries consisting of, at a
minimum, balance sheets of the Company and its Subsidiaries on a
consolidated basis as of the end of such fiscal year, and related
statements of net earnings and cash flows for such fiscal year, all in
reasonable detail (and, without limiting the generality of this
paragraph (a)(ii), setting forth, therein or in a separate
certificate, as a separate item, the amount of interest expense during
such period) and certified by independent public accountants of
nationally recognized standing selected by the Company and stating in
comparative form the respective figures as of the end of and for the
previous fiscal year;
(iii) concurrently with the financial statements for each
quarterly accounting period and for each fiscal year of the Company
furnished pursuant to paragraphs (a)(i) and (a)(ii) of this subsection
5.1, (A) a certificate of a Responsible Officer stating that, based on
an examination which in the opinion of the signer is sufficient to
enable him to make an informed statement, the Company and its
Subsidiaries have performed and observed all of, and neither the
Company nor any of its Subsidiaries is in default in the performance
or observance of any of, the terms, covenants, agreements and
conditions of this Agreement or, if the Company or any of its
Subsidiaries shall be in default, specifying all such defaults and the
nature thereof, of which the signer of such certificate may have
knowledge, and (B) an analysis prepared and certified by a Responsible
Officer of the covenants contained in subsections 6.1, 6.2 and 6.3
containing all information necessary for determining compliance by the
Company with each such covenant; and
(iv) such other information relating to the affairs of the
Company and its Subsidiaries as any Bank through the Agent may from
time to time reasonably request.
(b) Upon written request by any Bank through the Agent, the
Company will furnish to such Bank copies of (i) all such reports of the
type a publicly held corporation would generally make available to its
stockholders as the Company shall make available to Chrysler, (ii) all such
proxy statements, financial statements and reports as any Subsidiary shall
send or make available generally to its stockholders other than the
Company, and (iii) all regular and periodic reports which the Company or
any Subsidiary may be required to file with the Securities and Exchange
Commission or any similar or corresponding government department,
commission, board, bureau or agency, domestic or foreign, or with any
securities exchange.
5.2 Payment of Obligations. The Company will, and will cause
each Subsidiary to, pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its
obligations and liabilities of whatever nature, except when the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have
been provided on the books of the Company or its Subsidiaries, as the case
may be, and except for delinquent obligations which do not materially
adversely affect the financial condition of the Company and its
Subsidiaries taken as a whole.
5.3 Maintenance of Existence and Property. The Company will,
and will cause each Subsidiary to, preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in
the normal conduct of its business, except for rights, privileges and
franchises the loss of which would not in the aggregate in the reasonable
business judgment of the Company have a material adverse effect on the
business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole, and except as otherwise
permitted by subsection 6.6; and keep all property useful and necessary in
its business in good working order and condition.
5.4 Notices. The Company will promptly give notice to the Agent
(which shall notify the Banks) (a) of the occurrence of any Default or
Event of Default, (b) of any event of default under any material instrument
or other agreement of the Company or any of its Finance Subsidiaries (and
in the case of a notice under this clause (b) or the foregoing clause (a),
such notice shall be accompanied by a certificate of a Responsible Officer
specifying the nature of such event, the period of existence thereof, and
the action that the Company or the relevant Finance Subsidiary proposes to
take with respect thereto), (c) of any litigation, proceeding,
investigation or dispute which may exist at any time between the Company or
any of its Subsidiaries and any Governmental Authority or any other Person
which might have a materially adverse effect upon the business, operations,
assets or condition, financial or otherwise, of the Company or any of its
Subsidiaries, (d) of any change in the ownership by Chrysler of shares of
capital stock of the Company, and (e) of the occurrence or existence of any
of the following events or conditions, as soon as possible and in any event
within 45 days after the Company knows or should have known thereof: (i)
the occurrence of any Reportable Event with respect to any Single Employer
Plan (other than a Reportable Event not subject to the provision for 30-day
notice to the PBGC pursuant to the regulations issued under ERISA), or (ii)
the institution of proceedings or the taking of any other action by the
PBGC or the Company or any Commonly Controlled Entity to terminate,
withdraw or partially withdraw from any Single Employer Plan, and in
addition to such notice, deliver to the Agent whichever of the following
may be applicable: (A) a certificate of a Responsible Officer setting
forth details as to such Reportable Event and the action that the Company
or Commonly Controlled Entity proposes to take with respect thereto,
together with a copy of any notice of such Reportable Event that may be
required to be filed with PBGC, or (B) any notice delivered by PBGC
evidencing its intent to institute such proceedings or any notice to PBGC
that such Plan is to be terminated, as the case may be.
SECTION 6. NEGATIVE COVENANTS
The Company hereby covenants and agrees that so long as the
Commitments remain in effect, any Loan made hereunder remains outstanding
and unpaid or any other amount is owing to any Bank or the Agent hereunder:
6.1 Limitation on Indebtedness and Guaranties. The Company will
not, and will not permit any Subsidiary to, create, assume or incur, or
become, remain or be liable on any Indebtedness or Guaranty other than
(i) in the case of the Company,
(A) Senior Debt or Guaranties of the Company to the extent
permitted by the proviso to this subsection 6.1;
(B) Subordinated Debt, and
(C) Capital Notes; and
(ii) in the case of any Subsidiary (other than any Finance
Subsidiary which is a U.S. Subsidiary), Indebtedness and Guaranties of
such Subsidiary to the extent permitted by the proviso to this
subsection 6.1;
provided, however, that the Company will not permit the sum, without double
counting, of (x) the aggregate outstanding principal amount of Senior Debt
and of Indebtedness of Subsidiaries and (y) the aggregate outstanding
principal amount of obligations entitled to the benefits of any Guaranty by
the Company or any Subsidiary, in each case as of the last day of any
calendar month, to exceed 650% of the Capital Base as of such last day (or
675% of the Capital Base as of the last day of any three consecutive
calendar months immediately succeeding six consecutive calendar months in
which such aggregate outstanding principal amount did not exceed 650% of
the Capital Base as of the last day of each such month).
6.2 Consolidated Tangible Net Worth. The Company will not
permit Consolidated Tangible Net Worth to be less than $1,500,000,000.
6.3 Fixed Charges Coverage Ratio. The Company will not permit
its "net earnings available for fixed charges" to be less than 110% of its
"fixed charges" for any fiscal year of the Company, or for the portion of
any fiscal year of the Company ending with the last day of each calendar
quarter therein. For the purposes of this subsection 6.3, "net earnings
available for fixed charges" and "fixed charges" shall be determined for
the Company and for the Company and its Subsidiaries on a consolidated
basis.
For the purposes of this subsection 6.3:
(a) "Net earnings available for fixed charges" shall mean net
income after deducting operating and maintenance expenses, taxes other
than federal, state and other income taxes, except to the extent
stated below in the case of consolidated subsidiaries, depreciation
and depletion, but excluding extraordinary nonrecurring items of
income or expense appearing in the regular consolidated financial
statements of the Company.
(b) "Fixed charges" shall mean interest on debt, amortization of
debt discount, and rentals for leased properties, except rentals under
leases having a term of one year or less.
(c) In determining net earnings and fixed charges on a
consolidated basis, all intercompany items and the portions of
earnings allocable to minority interests in consolidated subsidiaries
shall be eliminated, provision for or refund of income taxes of
consolidated subsidiaries in which the Company owns directly or
indirectly less than ninety percent of all classes of voting stock
shall be deducted or added, and fixed charges shall include fixed
charges and preferred dividends of consolidated subsidiaries that are
not intercompany items.
(d) Earnings attributable to assets or institutions acquired by
merger, consolidation, reorganization, succession, organization,
purchase or otherwise may be included for that part of the test period
which precedes such acquisition, provided that (i) if less than
substantially all assets of any other institution (or all or less than
all assets of any other type of business enterprise) is acquired, such
earnings may be included to the extent they are certified by an
independent accountant to be attributable to such assets and (ii) if
an institution (or substantially all of its assets) is acquired, such
earnings may be included if they are included in financial statements
of such institution prepared under generally accepted accounting
principles. Fixed charges and preferred dividends for the period of
such inclusion shall either include any additional fixed charges and
preferred dividends properly attributable to such acquisition as
certified by an independent accountant, or be the fixed charges and
preferred dividends with respect to debt and stock outstanding
immediately after such acquisition.
6.4 Limitation on Transactions with Affiliates. The Company
will not, and will not permit any Subsidiary to, engage in any transaction
with an Affiliate (other than the Company and its Subsidiaries) on terms
substantially less favorable to the Company or such Subsidiary than would
be obtainable at the time in comparable transactions of the Company or such
Subsidiary with Persons not Affiliates.
6.5 Limitation on Amendments to Income Maintenance Agreement.
The Company will not amend, modify, terminate or grant any waiver under the
Income Maintenance Agreement, provided that the Company may enter into a
waiver, amendment or modification of the Income Maintenance Agreement which
is solely for the purposes of (a) extending the term thereof or relaxing or
lessening the restrictions on, or duties of, the Company or any of its
Subsidiaries thereunder or (b) conforming the provisions thereof relating
to the fixed charge coverage ratio to the provisions of subsection 6.3.
6.6 Limitation on Fundamental Change. (a) The Company will
not, nor will it permit any Subsidiary to, merge or consolidate with or
into any other Person, nor will the Company or any Subsidiary enter into
any Material Asset Disposition (as hereinafter defined) except that:
(i) the Company may merge or consolidate with or into any other
Person, provided that (A) the Company shall be the continuing or
surviving corporation, and (B) immediately after such merger or
consolidation, no Default or Event of Default shall have occurred and
be continuing;
(ii) any Subsidiary may merge or consolidate (A) with or into the
Company (provided that the Company shall be the continuing or
surviving corporation), (B) with or into any one or more wholly-owned
Subsidiaries (provided that a wholly-owned Subsidiary shall be the
continuing or surviving corporation), (C) with or into any other
Person, if such Subsidiary shall be the continuing or surviving
corporation, shall continue to be a Subsidiary of the Company and
immediately after such merger or consolidation, no Default or Event of
Default shall have occurred and be continuing, or (D) with or into any
other Person, if the disposition of the stock of such Subsidiary by
its parent corporation does not constitute a Material Asset
Disposition; and
(iii) any Subsidiary may enter into any Material Asset Disposition
by which its assets are transferred to the Company or a wholly-owned
Subsidiary.
For purposes of this subsection 6.6, the term "Material Asset
Disposition" shall mean any transaction (not including a transaction (1) by
which a Lien is created, which is permitted by subsection 6.7, (2)
consisting of a sale of Receivables, or any interest therein, by the
Company or its Subsidiaries or (3) consisting of a lease of assets entered
into in the ordinary course of business of the Company and its
Subsidiaries) consisting of the sale, lease, transfer or other disposition
of assets having a book value at the time of such transaction equal to or
greater than the Maximum Disposition Amount, and any group of related
sales, leases, transfers or other dispositions made within any period of
six consecutive calendar months commencing on or after the Effective Date
shall be treated as one transaction for purposes of determining whether the
same is a Material Asset Disposition, provided, that a sale of any of the
stock of, or any of the assets of, Chrysler First or any subsidiary
thereof, or the sale of any of the stock of, or any of the assets of,
Chrysler Capital, or any subsidiary thereof, shall not constitute a
"Material Asset Disposition".
(b) The Company and its Subsidiaries will not engage in any
business other than the Finance Business, the Finance-Related Insurance
Business and the other businesses in which the Company and its Subsidiaries
are engaged as of the date hereof, and other than businesses in which the
Company or any of its Subsidiaries may be involved in connection with or
related to any workout, liquidation, foreclosure or other realization on or
disposition of assets in which it has a security interest, or any other
exercise of rights or remedies pursuant to a workout in connection with any
financing (whether equity or debt) provided by the Company or any of its
Subsidiaries to any Person.
6.7 Limitation on Liens. (a) The Company will not, and will
not permit any Finance Subsidiary to, create, assume or incur, or suffer to
be created, assumed or incurred or to exist, any Lien in respect of any
property of any character of the Company or such Finance Subsidiary,
whether heretofore or hereafter acquired; excluding, however, from the
operation of this covenant:
(i) Liens on assets of any Finance Subsidiary which is a
Canadian Corporation securing obligations of such Subsidiary;
(ii) any deposit of assets of the Company or any of its Finance
Subsidiaries with any surety company or clerk of any court, or in
escrow, as collateral in connection with, or in lieu of, any bond on
appeal by the Company or any of its Finance Subsidiaries, from any
judgment or decree, or in connection with other proceedings or actions
at law or in equity by or against the Company or any of its Finance
Subsidiaries;
(iii) Liens created by any Finance Subsidiary in favor of the
Company or a wholly-owned Subsidiary securing indebtedness of such
Finance Subsidiary to the Company or a wholly-owned Subsidiary (which
Liens cannot be transferred except to the Company or to another
wholly-owned Subsidiary);
(iv) any deposits to secure public or statutory obligations of
the Company or any of its Finance Subsidiaries, other than any such
deposit made as a result of or in connection with the occurrence of
any of the events described in clause (i), (ii), (iii) or (iv) of
subsection 7(g);
(v) any purchase money Liens in respect of fixed assets or other
physical or real properties heretofore or hereafter acquired by the
Company or any of its Finance Subsidiaries, or any Liens existing in
respect of such property at the time of acquisition thereof; provided,
however, that no such Lien shall extend to or cover any other property
of the Company or such Finance Subsidiary, as the case may be;
(vi) any Liens which are (A) in respect of fixed assets or other
physical properties of a corporation which is not a Finance Subsidiary
as of the date hereof, and (B) in existence at the time such
corporation becomes a Finance Subsidiary;
(vii) the extension, renewal or replacement of any Lien permitted
by paragraphs (i) through (v) above in respect of the same property
theretofore subject thereto or the extension, renewal or replacement
(without increase of principal amount) of the indebtedness secured
thereby;
(viii) Liens for taxes not yet due or which are being contested in
good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Company or such
Finance Subsidiary, as the case may be, in accordance with GAAP;
(ix) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business (A) which are not overdue for a period of
more than 60 days or (B) which are being contested in good faith and
by appropriate proceedings if adequate reserves with respect thereto
are maintained on the books of the Company or such Finance Subsidiary,
as the case may be, in accordance with GAAP;
(x) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred in the
ordinary course of business which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or interfere with the
ordinary conduct of the business of the Company or its Finance
Subsidiaries;
(xi) any attachment or judgment lien, unless the judgment it
secures shall not, within 30 days after the entry thereof have been
discharged or execution thereof stayed pending appeal, or shall not
have been discharged within 30 days after the expiration of any such
stay;
(xii) Liens granted on assets in connection with leveraged leases
and project financings entered into in the ordinary course of the
Finance Business; and
(xiii) Liens to secure Indebtedness and other obligations of the
Company or any of its Finance Subsidiaries not otherwise permitted by
this subsection 6.7, but only to the extent that the aggregate amount
of Indebtedness and other obligations secured thereby does not at any
time exceed $100,000,000.
(b) The Company will not permit any Domestic Subsidiary that is
not a Finance Subsidiary to create, assume or incur, or suffer to be
created, assumed or incurred or to exist, any Lien in respect of any
property of any character of such Domestic Subsidiary, whether heretofore
or hereafter acquired, excluding, however, from the operation of this
covenant:
(i) Liens on property of such Domestic Subsidiary that would be
permitted under subsection 6.7(a) if such Domestic Subsidiary were a
Finance Subsidiary;
(ii) Liens on property of such Domestic Subsidiary that are
incurred in the ordinary course of the Finance Business or the Real
Estate Business of such Domestic Subsidiary; and
(iii) Liens on any property of such Domestic Subsidiary if such
Domestic Subsidiary is a "single purpose" entity formed for the
purpose of holding title to such property and engages in no activities
other than those related to holding title to such property.
6.8 Multiemployer Plans; etc. (a) The Company will not, and
will not permit any Commonly Controlled Entity to, withdraw from any
Multiemployer Plan if the aggregate withdrawal liabilities under ERISA to
which the Company and all Commonly Controlled Entities would be subject as
a result of such withdrawal (other than withdrawal liabilities in respect
of which adequate reserve has been made by the Company or a Commonly
Controlled Entity) would exceed $10,000,000.
(b) The Company will not merge or consolidate any Plan in
respect of which it is the "employer" as defined in Section 3(5) of ERISA
with any Plan in respect of which Chrysler is the "employer" as so defined.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) the Company shall fail to pay any principal of any Loan made
hereunder when due in accordance with the terms hereof; or to pay any
interest on any Loan made hereunder or any other amount payable
hereunder within five Business Days after any such interest or other
amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made by the Company herein,
or deemed made by the Company pursuant to Section 3 or 4, or contained
in any certificate, document or financial or other statement furnished
at any time under or in connection with this Agreement shall prove to
have been incorrect in any material respect on or as of the date made
or deemed made; or
(c) the Company shall default in the observance or performance
of any agreement contained in Section 6; or
(d) the Company shall default in the observance or performance
of any other agreement, covenant or term contained in this Agreement
(including any failure to make any payment required hereunder other
than as described in paragraph (a) above), and such default shall
continue unremedied for a period of 30 days after receipt by the
Company of notice of such default from the Agent; or
(e) the Company or any Significant Subsidiary shall (i) default
in any payment or payments in the aggregate amount of more than
$20,000,000 (or its equivalent in another currency) at any one time on
any of its Indebtedness (other than the Loans made hereunder), or any
guarantee thereof, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or
(ii) default in the observance or performance of any other agreement
or condition relating to any Indebtedness in the principal amount of
more than $20,000,000 or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause such Indebtedness to become due prior to its stated
maturity; or
(f) (i) the Company or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing
or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or
the Company or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Company or any of its Significant
Subsidiaries any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against the Company or any of its
Significant Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Company or any of
its Significant Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii) or (iii) above; or (v) the
Company or any of its Significant Subsidiaries shall admit in writing
its inability to pay its debts generally as they become due; or
(g) (i) any Person shall engage in any Prohibited Transaction
involving any Plan, (ii) any Accumulated Funding Deficiency, whether
or not waived, shall exist with respect to any Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which
Reportable Event or institution of proceedings is, in the reasonable
opinion of the Required Banks, likely to result in the termination of
such Plan for purposes of Title IV of ERISA, and, in the case of a
Reportable Event, the continuance of such Reportable Event unremedied
for ten days after notice of such Reportable Event pursuant to Section
4043(a), (c) or (d) of ERISA is given or the continuance of such
proceedings for ten days after commencement thereof, as the case may
be, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, or (v) any other event or condition shall occur or
exist with respect to a Single Employer Plan; and in each case in
clauses (i) through (v) above, the Agent shall have notified the
Company that, in the opinion of the Required Banks, such event or
condition, together with all other such events or conditions, if any,
could reasonably be expected to subject the Company or any of its
Subsidiaries to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or
financial or other condition of the Company and its Subsidiaries taken
as a whole; or
(h) one or more final judgments or decrees shall be entered
against the Company or any of its Significant Subsidiaries involving
in the aggregate a liability (not paid or fully covered by insurance)
of $20,000,000 or more, shall have been unpaid for a period of 60 days
and shall not have been stayed; or
(i) Chrysler shall at any time fail to own at least 51% of the
issued and outstanding shares of the common stock of the Company;
then, and in any such event, (a) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to the
Company, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (b) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Banks, the
Agent may, or upon the request of the Required Banks, the Agent shall, by
notice to the Company, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the
consent of the Required Banks, the Agent may, or upon the request of the
Required Banks, the Agent shall, by notice of default to the Company,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable. Except as
expressly provided above in this Section 7, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
SECTION 8. THE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chemical as the Agent of such Bank under this Agreement, and each
Bank hereby irrevocably authorizes Chemical as Agent for such Bank, to take
such action on its behalf under the provisions of this Agreement and to
exercise such powers and perform such duties as are expressly delegated to
the Agent by the terms of this Agreement, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Agreement or otherwise exist against the Agent.
8.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. Without limiting the foregoing, the Agent may appoint CASC as
its agent to perform the functions of the Agent hereunder relating to the
advancing of funds to the Company and distribution of funds to the Banks
and to perform such other related functions of the Agent hereunder as are
reasonably incidental to such functions.
8.3 Exculpatory Provisions. Neither the Agent, nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates
(including, without limitation, CASC) shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct), or (b) responsible in any manner to any
of the Banks for any recitals, statements, representations or warranties
made by the Company or any officer thereof contained in this Agreement or
in any certificate, report, statement or other document referred to or
provided for in, or received by the Agent under or in connection with, this
Agreement or for any failure of the Company to perform its obligations
hereunder. The Agent shall not be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect
the properties, books or records of the Company.
8.4 Reliance by Agent and CASC. The Agent and CASC shall be
entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, facsimile transmission, telex or teletype message,
statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent and CASC
may deem and treat the Bank specified in the Register with respect to any
amount owing hereunder as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have
been filed with the Agent in accordance with subsection 9.7. The Agent
shall be fully justified in failing or refusing to take any action under
this Agreement unless it shall first receive such advice or concurrence of
the Required Banks (or, if so specified in this Agreement, all of the
Banks) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall, in all cases, be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request
of the Required Banks (or, if so specified in this Agreement, all of the
Banks), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks and all future holders of the
obligations owing by the Company hereunder.
8.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
unless the Agent has received notice from a Bank or the Company referring
to this Agreement, describing such Default or Event of Default and stating
that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give notice thereof to the Banks,
and, if such notice is received from a Bank, the Agent shall give notice
thereof to the Company and each other Bank. Subject to the proviso
contained in the first sentence of subsection 9.1, the Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks (or, if so specified in this
Agreement, all of the Banks), provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Banks.
8.6 Non-Reliance on Agent, Other Banks and CASC. Each Bank
expressly acknowledges that neither the Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates (including,
without limitation, CASC) has made any representations or warranties to it
and that no act by the Agent hereafter taken, including any review of the
affairs of the Company, shall be deemed to constitute any representation or
warranty by the Agent to any Bank. Each Bank represents to the Agent and
CASC that it has, independently and without reliance upon the Agent, any
other Bank or CASC, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also represents that it
will, independently and without reliance upon the Agent, any other Bank or
CASC, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this
Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports
and other documents expressly required to be furnished to the Banks by the
Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of the
Agent or any of its officers, directors, employees, agents, attorneys-in-
fact or affiliates.
8.7 Indemnification. The Banks agree to indemnify the Agent and
CASC (to the extent not reimbursed by the Company and without limiting the
obligation of the Company to do so), ratably according to the respective
amounts of their respective Commitment Percentages in effect on the date on
which indemnification is sought under this subsection 8.7 (or, if
indemnification is sought after the date upon which the Commitments shall
have terminated, ratably in accordance with such Commitment Percentages
immediately prior to such date) from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Loans made hereunder) be imposed on, incurred by or asserted against the
Agent or CASC in any way relating to or arising out of this Agreement or
any other documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by the
Agent or CASC under or in connection with any of the foregoing, provided
that no Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's or
CASC's gross negligence or willful misconduct. The agreements in this
subsection 8.7 shall survive the payment of the Loans made hereunder and
all other amounts payable hereunder.
8.8 Agent in its Individual Capacity. The Agent and its
affiliates may make loans to, accept deposits from and generally engage in
any kind of business with the Company as though the Agent were not the
Agent hereunder. With respect to its Loans made or renewed by it, the
Agent shall have the same rights and powers under this Agreement as any
Bank and may exercise the same as though it were not the Agent and the
terms "Bank" and "Banks" shall include the Agent in its individual
capacity.
8.9 Successor Agent. The Agent may resign as Agent, upon 10
days' notice to the Banks and the Company, and may be removed at any time
with or without cause by the Required Banks. If the Agent shall resign or
be removed as Agent under this Agreement, then either (a) the Required
Banks shall appoint from among the Banks a successor agent for the Banks,
which successor agent shall be approved by the Company, or (b) if a
successor agent shall not have been so appointed and approved within the
ten-day period following the Agent's notice to the Banks or its removal as
Agent, the Agent shall then, with the consent of the Company, appoint a
successor agent who shall serve as Agent until such time, if any, as the
Required Banks appoint, and the Company approves, a successor agent as
provided in (a) above. Upon its appointment pursuant to either clause (a)
or (b) above, such successor agent shall succeed to the rights, powers and
duties of the Agent, and the term "Agent" shall mean such successor agent
effective upon its appointment, and the former Agent's rights, powers and
duties as Agent shall be terminated, without any other or further act or
deed on the part of such former Agent or any of the parties to this
Agreement or any holders of the obligations owing by the Company hereunder.
After any retiring Agent's resignation hereunder as Agent, the provisions
of this Section 8 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. With the written consent of the
Required Banks, the Agent and the Company may, from time to time, enter
into written amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Agreement or changing in any
manner the rights of the Banks or of the Company hereunder, and with the
consent of the Required Banks, the Agent on behalf of the Banks may execute
and deliver to the Company a written instrument waiving, on such terms and
conditions as the Agent may specify (with such consent) in such instrument,
any of the requirements of this Agreement or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (a) extend the maturity of
any Loan, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof, or change the amount or
terms of any Bank's Commitment, or amend, modify or waive any provision of
this subsection 9.1 or reduce the percentage specified in the definition of
Required Banks, or consent to the assignment or transfer by the Company of
any of its rights and obligations under this Agreement or amend, modify or
waive the provisions of subsection 9.8, in each case without the prior
written consent of each Bank directly affected thereby, or (b) amend,
modify or waive any provision of Section 8 without the prior written
consent of the Agent. Each Bank hereby consents to the inclusion in this
Agreement of each and every amendment, revision, addition, change, waiver
or other modification to Section 5, Section 6 and/or the definitions of
"Applicable Base Rate Margin", "Applicable Eurodollar Margin", "Base Rate",
"Eurodollar Rate" and "Status" (including each defined term referred to in
the definition of "Status") of the Revolving Credit Agreement made after
the Effective Date (except to the extent relating to any provision
contained in such Sections on the Effective Date as to which there is no
comparable provision herein on the Effective Date) and each and every such
amendment, revision, addition, change, waiver or other modification thereof
is hereby incorporated, as in effect from time to time, into this Agreement
with the same effect as if fully set forth in Section 5, Section 6 and/or
the definitions of "Applicable Base Rate Margin", "Applicable Eurodollar
Margin", "Base Rate", "Eurodollar Rate" and "Status" (including each
defined term referred to in the definition of "Status") of this Agreement,
as appropriate, provided that for purposes of this Agreement if the
Revolving Credit Agreement is terminated such Sections 5 and 6 and such
definitions of "Applicable Base Rate Margin", "Applicable Eurodollar
Margin", "Base Rate" and "Eurodollar Rate" shall remain in effect for
purposes of this Agreement in the form in which they shall be in effect on
the date of such termination; provided, further, that for purposes of this
Agreement if the Revolving Credit Agreement is amended so as to remove the
covenant set forth in subsection 6.7 of the Revolving Credit Agreement,
subsection 6.7 hereof shall not be so amended, and if any provision of
subsection 6.7 of the Revolving Credit Agreement is amended or waived so as
to grant to the financial institutions under the Revolving Credit Agreement
a Lien on any assets of the Company or its Subsidiaries, the obligations of
the Company hereunder shall be secured, and the Company shall take such
action and execute such security documents as the Agent may reasonably
request to further effect the security of such obligations, equally and
ratably with its obligations to the financial institutions under the
Revolving Credit Agreement. The Company will advise the Agent promptly of
any amendment to or termination of the Revolving Credit Agreement. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Banks and shall be binding upon the Company, the
Banks, the Agent and all future holders of the obligations owing by the
Company hereunder. In the case of any waiver, the Company, the Banks and
the Agent shall be restored to their former position and rights hereunder
and any Default or Event of Default waived shall be deemed to be cured and
not continuing; but no such waiver shall extend to any subsequent or other
Default or Event of Default, or impair any right consequent thereon. No
provision of this subsection 9.1 shall limit the rights of any party hereto
pursuant to subsections 2.13, 2.14, 2.15, 2.16, 2.17, 9.8 and 9.9.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing or by
telecopy and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered by hand or when deposited in
the mail, first class or air postage prepaid, or, in the case of telecopied
notice, when telecopied, receipt acknowledged, addressed as follows in the
case of the Company and the Agent, and as set forth in its Addendum in the
case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders
of the obligations owing by the Company hereunder:
The Company: Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Treasurer
Telecopy: 810-948-3801
The Agent: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: John S. Cannon
Telecopy: 212-270-1469
With Copies
to: Chemical Bank Agency
Services Corporation
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: James Morgan
Telecopy: 212-622-0002
provided that any notice, request or demand to or upon the Agent pursuant
to subsection 2.2, 2.4, 2.18, or 8.5 shall not be effective until received.
9.3 Clearing Accounts. (a) Each Bank irrevocably authorizes
the Agent and CASC to cause such Bank's Clearing Account to be debited as
contemplated in subsection 2.2 and to cause to be created an overdraft in
such account if the balance in such Bank's Clearing Account on a particular
Borrowing Date is less than the amount of the Loan to be made by such Bank
on such day. In addition each Bank irrevocably authorizes the Agent and
CASC to cause such Bank's Clearing Account to be credited, as contemplated
in subsection 2.12(a), with its ratable share of payments received by the
Agent from the Company. The Clearing Account of each Bank shall be
maintained at its own expense and free of charge to the Agent, CASC and the
Company.
(b) The Agent may at any time in its sole discretion, upon
notice to the Company and the Banks, discontinue the use of ACH procedures
in connection with Loans made pursuant hereto, and the Banks shall
thereafter fund each Loan required to be made by them hereunder by making
available the amount thereof to the Agent for the account of the Company at
the office of the Agent set forth in subsection 9.2 in funds immediately
available to the Agent.
9.4 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Bank, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or of
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
9.5 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement.
9.6 Payment of Expenses. The Company agrees:
(a) to pay or reimburse the Agent for all reasonable out-of-
pocket costs and expenses incurred in connection with the preparation
and execution of, and any amendment, supplement or modification to,
this Agreement and any other documents prepared in connection
herewith, and the consummation of the transactions contemplated hereby
and the administration of this Agreement, including, without
limitation, the reasonable fees and disbursements of Simpson Thacher &
Bartlett, special counsel to the Agent and the Banks;
(b) to pay or reimburse each Bank and the Agent for all costs
and expenses (other than legal fees and disbursements) incurred in
connection with the enforcement or preservation of any rights under
this Agreement and any such other documents and the reasonable fees
and disbursements of one firm of special counsel to the Agent and the
Banks; and
(c) to (i) indemnify each Bank from and against liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (other than legal fees and
disbursements) of any kind whatsoever (and, with respect to any
proceeding or related proceedings, the reasonable fees and
disbursements of one firm of special counsel to the relevant Banks in
connection with such proceeding(s)) which may at any time (including,
without limitation, at any time following the payment of the Loans
made hereunder) be imposed on, incurred by or asserted against such
Bank in any way relating to or arising out of this Agreement or any
other documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by
such Bank under or in connection with any of the foregoing, provided
that the Company shall not be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from (x)
the ordinary course administration of this Agreement or such other
documents by any Bank or (y) any Bank's gross negligence or willful
misconduct or bad faith and (ii) pay or reimburse (x) each Bank for
any payments made by such Bank to the Agent or CASC pursuant to the
provisions of subsection 8.7 and (y) the Agent and CASC for any and
all liabilities, expenses or disbursements incurred by any of them
which pursuant to the provisions of subsection 8.7 are the subject of
indemnification payments from the Banks to the extent that the Agent
or CASC, for whatever reason, did not receive such indemnification
payments from any Bank or Banks.
The agreements in this subsection 9.6 shall survive the repayment
of the Loans made hereunder and all other amounts payable hereunder.
9.7 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, the Banks and the Agent, and their respective successors and
assigns, except that the Company may not assign or transfer any of its
rights or obligations under this Agreement without the prior written
consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Bank, any Commitment of such Bank or
any other interest of such Bank hereunder. In the event of any such sale
by a Bank of a participating interest to a Participant, such Bank's
obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any Loan made by
it for all purposes under this Agreement, and the Company and the Agent
shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement, provided,
that the terms of any participation agreement or certificate relating to
any such participation shall prohibit any subparticipations by such
participant and provided, further any such participation agreement or
certificate shall permit the Bank granting such participations the right to
consent to waivers, amendments or supplements to this Agreement without the
consent of such participant except in the case of (a) waivers of any
Default or Event of Default described in Section 7(a), and (b) any
amendment or modification extending the maturity of any Loan, or reducing
the rate or extending the time of payment of interest thereof, or reducing
the principal amount thereof. The Company agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to
have agreed to share with the Banks the proceeds thereof as provided in
subsection 9.9 as fully as if it were a Bank hereunder. All amounts
payable by the Company under Section 2 shall be determined as if such Bank
had not sold such participations.
(c) Any Bank may assign to any Bank or additional bank or
financial institution or any Federal Reserve Bank all or any part of its
rights and obligations under this Agreement on the terms and conditions set
forth in subsection 9.6(c), (d), (e) and (g) of the Chrysler Agreement, the
provisions of which (including the definitions of defined terms used
therein) are incorporated herein by reference as if set forth fully herein;
provided, however, that in no event shall any such assignment by any Bank
to any assignee (other than any pledge or assignment of Loans to a Federal
Reserve Bank) be permitted hereunder unless contemporaneously therewith
such Bank shall assign to such assignee a percentage interest in such
Bank's rights and obligations under the Chrysler Agreement and the
promissory notes issued thereunder that is equal to the percentage interest
then being assigned hereunder.
(d) The Company authorizes each Bank to disclose to any
Participant or Assignee (as defined in the Chrysler Agreement) (each, a
"Transferee") and any prospective Transferee any and all financial
information in such Bank's possession concerning the Company and its
Affiliates which has been delivered to such Bank by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such Bank
by or on behalf of the Company in connection with such Bank's credit
evaluation of the Company and its affiliates prior to becoming a party to
this Agreement.
(e) In order to facilitate any pledge or assignment to any
Federal Reserve Bank of any Loans made by any Bank hereunder, the Company
hereby agrees that, upon request of any Bank at any time and from time to
time after the Company has made its initial borrowing hereunder, the
Company shall provide to such Bank, at the Company's own expense, a note,
substantially in the form of Exhibit F, evidencing the Loans owing to such
Bank.
(f) The Agent shall maintain at its address referred to in
subsection 9.2 a register (the "Register") for the recordation of the names
and addresses of the Banks, the Commitments of the Banks, and the principal
amount of each Type of Loan owing to each Bank from time to time. The
entries in the Register shall be conclusive, in the absence of clearly
demonstrable error, and the Company, the Agent and the Banks may treat each
Person whose name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by the Company or any Bank at any reasonable time
and from time to time upon reasonable prior notice. The Agent shall give
prompt written notice to the Company of the making of any entry in the
Register or any change in any such entry.
9.8 Right of Set-off. Upon (a) the occurrence and during the
continuance of an Event of Default and (b) with the consent of the Required
Banks, each Bank is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank (including,
without limitation, its branches) to or for the credit or the account of
the Company against any and all of the obligations of the Company now or
hereafter existing under this Agreement, irrespective of whether or not
such Bank shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Bank agrees promptly to notify the
Company after any such set-off and application made by such Bank, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Bank under this subsection are
in addition to other rights and remedies (including, without limitation,
other rights of set-off) which such Bank may have.
9.9 Adjustments. If any Bank (a "benefitted Bank") shall at any
time receive any payment of all or part of its Loans made hereunder, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings
of the nature referred to in clause (f) of Section 7, or otherwise) in a
greater proportion than any such payment to, or any collateral received by,
any other Bank, if any, in respect of such other Bank's Loans, or interest
thereon, such benefitted Bank shall purchase for cash from the other Banks
such portion of each such other Bank's Loans, or shall provide such other
Banks with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Bank to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Banks; provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such benefitted Bank, such
purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The Company agrees
that each Bank so purchasing a portion of another Bank's Loans may exercise
all rights of payment (including, without limitation, rights of set-off)
with respect to such portion as fully as if such Bank were the direct
holder of such portion.
9.10 New Banks. During the term of this Agreement with the
consent of the Company and upon notification to the Agent, one or more
additional financial institutions may become a party to this Agreement by
executing a supplement hereto with the Company and the Agent, substantially
in the form of Exhibit B, whereupon such financial institution (herein
called a "New Bank") shall become a Bank for all purposes and to the same
extent as if originally a party hereto and shall be bound by and entitled
to the benefits of this Agreement, provided that any such New Bank has also
become a New Bank under the Chrysler Agreement pursuant to subsection 9.10
thereof. Effective as of the date on which any such New Bank becomes a
Bank pursuant to the provisions of this subsection, the Agent, each Bank
and the Company shall receive a notice from Chrysler of each Bank's
Commitment and the aggregate Commitments pursuant to subsection 2.17 of the
Chrysler Agreement. If on the date upon which such New Bank becomes a Bank
pursuant to the provisions of this subsection 9.10, there is an unpaid
principal amount of the Loans outstanding hereunder, the Company shall
borrow from such New Bank through the Agent, in an amount determined by
multiplying the amount of such New Bank's Commitment by a fraction, the
numerator of which shall be the then unpaid principal amount of the Loans
outstanding hereunder and the denominator of which shall be the aggregate
Commitments of the Banks other than the New Bank. Notwithstanding anything
herein to the contrary, if there are Eurodollar Loans outstanding, a
financial institution that becomes a New Bank will make Eurodollar Loans to
the Company (pro rata according to its Commitment Percentage) having
Interest Periods corresponding to the then unexpired portions of the
respective Interest Periods of such Eurodollar Loans and bearing interest
at a rate equal to the respective interest rates then applicable to such
Eurodollar Loans. The Agent shall advise the Banks of each addition of a
New Bank hereunder, of the amount of its Commitment and of the amount of
any borrowing from it hereunder made simultaneously upon its addition.
9.11 Increase in Commitments. During the term of this
Agreement, upon any Bank increasing its Commitment under the Chrysler
Agreement and Chrysler giving the notice required by subsection 2.17(c) of
the Chrysler Agreement, such Bank shall be deemed to have increased its
Commitment hereunder as set forth in such notice, whereupon such Bank shall
be bound by and entitled to the benefits of this Agreement with respect to
the full amount of its Commitment as so increased. Effective as of the
date on which any such Bank increases its Commitment pursuant to the
provisions of this subsection 9.11, the Agent, each Bank and the Company
shall receive a notice from Chrysler of each Bank's Commitment and the
aggregate Commitments pursuant to subsection 2.17 of the Chrysler
Agreement. If on the date upon which such Bank increases its Commitment
pursuant to this subsection 9.11 there is an unpaid principal amount of the
Loans hereunder, the Company shall borrow from such Bank through the Agent,
in an amount determined by multiplying the amount of the increase in such
Bank's Commitment by a fraction, the numerator of which shall be the then
unpaid principal amount of the Loans outstanding hereunder and the
denominator of which shall be the aggregate Commitments of the Banks other
than the amount of the additional Commitment of such Bank. Notwithstanding
anything herein to the contrary, if there are Eurodollar Loans outstanding,
a Bank that increases its Commitment pursuant to this subsection 9.11 will
make Eurodollar Loans to the Company (pro rata according to the amount of
the increase in such Bank's Commitment) having Interest Periods
corresponding to the then unexpired portions of the respective Interest
Periods of such Eurodollar Loans and bearing interest at a rate equal to
the respective interest rates then applicable to such Eurodollar Loans.
The Agent shall advise the Banks of such increase in the Commitment of a
Bank and of the amount of any borrowing from it hereunder made
simultaneously upon such increase.
9.12 Tax Forms. If any Bank which becomes a party to this
Agreement on any day after the date hereof pursuant to subsection 9.7 or
9.10 is organized under the laws of any jurisdiction other than the United
States or any state thereof, such Bank shall on such day (i) represent to
the transferor Bank (if applicable), the Agent and the Company that under
applicable law and treaties no taxes will be required to be withheld by the
Agent, the Company or the transferor Bank (if applicable) with respect to
any payments to be made to such Bank in respect of the Loans hereunder,
(ii) furnish to the transferor Bank (if applicable), the Agent and the
Company either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein such Bank claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments
hereunder) and (iii) agree (for the benefit of the transferor Bank (if
applicable), the Agent and the Company) to provide the transferor Bank (if
applicable), the Agent and the Company a new Form 4224 or Form 1001 upon
the expiration or obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by such Bank, and to
comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
9.13 Counterparts. This Agreement may be executed by one or
more of the parties hereto on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Company and the Agent.
9.14 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9.15 Submission to Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding commenced by any party hereto relating to this Agreement,
or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State
of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts, and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company at its address set forth in subsection 9.2 or
at such other address of which the Agent shall have been notified with
copies addressed as set forth in subsection 9.2; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
9.16 Integration. This Agreement represents the agreement of
each party with respect to the subject matter hereof, and there are no
promises or representations by the Agent or any Bank relative to the
subject matter hereof not reflected herein.
9.17 Restatement. It is the intention of each of the parties
hereto that all indebtedness of the Company under the Third Amended and
Restated Commitment Transfer Agreement be continued hereunder, and that the
Third Amended and Restated Commitment Transfer Agreement be amended and
restated in its entirety to reflect such continuation.
9.18 WAIVERS OF JURY TRIAL. THE COMPANY, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CHRYSLER FINANCIAL CORPORATION
By: /s/ D.A. Robison
Title: Vice President
and Treasurer
CHEMICAL BANK, as Agent
By: /s/ Karen Sager
Title: Vice President