Exhibit 10-C
CONFORMED COPY
CHRYSLER FINANCIAL CORPORATION
as Guarantor
ROYAL BANK OF CANADA
as Agent
CANADIAN IMPERIAL BANK OF COMMERCE
THE BANK OF NOVA SCOTIA
as Co-Agents
ROYAL BANK OF CANADA
CANADIAN IMPERIAL BANK OF COMMERCE
THE BANK OF NOVA SCOTIA
BANK OF MONTREAL
THE TORONTO-DOMINION BANK
BANK OF AMERICA CANADA
CHEMICAL BANK OF CANADA
CREDIT LYONNAIS CANADA
CREDIT SUISSE CANADA
MORGAN BANK OF CANADA
NATIONAL BANK OF CANADA
ABN AMRO BANK CANADA
BANQUE NATIONALE DE PARIS (CANADA)
SWISS BANK CORPORATION (CANADA)
UNION BANK OF SWITZERLAND (CANADA)
DAI-ICHI KANGYO BANK (CANADA)
DRESDNER BANK CANADA
NATIONAL WESTMINSTER BANK OF CANADA
SOCIETE GENERALE (CANADA)
THE BANK OF TOKYO CANADA
as Lenders
___________________________________________________________________________
GUARANTEE
May 23, 1994
___________________________________________________________________________
TABLE OF CONTENTS
Section Page
ARTICLE I
INTERPRETATION
1.01 - Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Accumulated Funding Deficiency" . . . . . . . . . . . . . . 2
"Applicable Laws". . . . . . . . . . . . . . . . . . . . . . 2
"Canadian Corporation" . . . . . . . . . . . . . . . . . . . 2
"Chartered Bank" . . . . . . . . . . . . . . . . . . . . . . 2
"Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Co-Agents". . . . . . . . . . . . . . . . . . . . . . . . . 2
"Commonly Controlled Entity" . . . . . . . . . . . . . . . . 2
"Credit Agreement" . . . . . . . . . . . . . . . . . . . . . 2
"Domestic Subsidiary". . . . . . . . . . . . . . . . . . . . 3
"ERISA". . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Finance Business" . . . . . . . . . . . . . . . . . . . . . 3
"Finance Subsidiary" . . . . . . . . . . . . . . . . . . . . 3
"Foreign Subsidiary" . . . . . . . . . . . . . . . . . . . . 3
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Governmental Authority" . . . . . . . . . . . . . . . . . . 3
"Guarantee". . . . . . . . . . . . . . . . . . . . . . . . . 3
"Guaranteed Liabilities" . . . . . . . . . . . . . . . . . . 3
"Guaranteed Parties" . . . . . . . . . . . . . . . . . . . . 4
"Guarantor". . . . . . . . . . . . . . . . . . . . . . . . . 4
"Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . 4
"Lender" . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Multiemployer Plan" . . . . . . . . . . . . . . . . . . . . 4
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Proceedings". . . . . . . . . . . . . . . . . . . . . . . . 4
"Prohibited Transaction" . . . . . . . . . . . . . . . . . . 4
"Real Estate Business" . . . . . . . . . . . . . . . . . . . 4
"Reportable Event" . . . . . . . . . . . . . . . . . . . . . 5
"Significant Subsidiary" . . . . . . . . . . . . . . . . . . 5
"Single Employer Plan" . . . . . . . . . . . . . . . . . . . 5
"Special Purpose Subsidiary" . . . . . . . . . . . . . . . . 5
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . 5
"U.S. Business Day". . . . . . . . . . . . . . . . . . . . . 5
"U.S. Credit Agreement". . . . . . . . . . . . . . . . . . . 5
1.02 - Headings and Table of Contents. . . . . . . . . . . . . . . . 5
1.03 - References. . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.04 - Rules of Interpretation . . . . . . . . . . . . . . . . . . . 5
1.05 - Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II
GUARANTEE
2.01 - Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
PAYMENT
3.01 - Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV
OBLIGATIONS ABSOLUTE
4.01 - Obligations Absolute . . . . . . . . . . . . . . . . . . . . 7
ARTICLE V
OBLIGATIONS CONTINUING
5.01 - Obligations Continuing. . . . . . . . . . . . . . . . . . . . 7
ARTICLE VI
OBLIGATIONS NOT AFFECTED
6.01 - Obligations Not Affected. . . . . . . . . . . . . . . . . . . 8
6.02 - Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.03 - No Obligation to Take Action Against Borrower . . . . . . . . 9
6.04 - Dealing with the Borrower and Others. . . . . . . . . . . . . 10
6.05 - Acknowledgement . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 - Representations and Warranties. . . . . . . . . . . . . . . . 10
7.02 - Deemed Repetition . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VIII
NEGATIVE COVENANTS
8.01 - Affirmative Covenants . . . . . . . . . . . . . . . . . . . . 13
(a) Maintenance of Ownership Interest. . . . . . . . . . . . . . 13
(b) Certificate. . . . . . . . . . . . . . . . . . . . . . . . . 13
(c) Information to be Provided . . . . . . . . . . . . . . . . . 13
8.02 - Negative Covenants. . . . . . . . . . . . . . . . . . . . . . 14
(a) No Impairment of Borrower. . . . . . . . . . . . . . . . . . 14
(b) Fixed Charges Coverage Ratio . . . . . . . . . . . . . . . . 14
(c) Limitation on Liens. . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IX
NOTICE
9.01 - Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE X
MISCELLANEOUS
10.01 - Amendment, Etc.. . . . . . . . . . . . . . . . . . . . . . . 18
10.02 - Assignment, Transfer and Participation . . . . . . . . . . . 18
10.03 - Acknowledgement by CFC re: Increased Commitments. . . . . . 19
10.04 - Acknowledgement by CFC re: New Lenders . . . . . . . . . . . 19
10.05 - Exchange of Information. . . . . . . . . . . . . . . . . . . 19
10.06 - Successor Agent. . . . . . . . . . . . . . . . . . . . . . . 19
10.07 - Judgment Currency. . . . . . . . . . . . . . . . . . . . . . 20
10.08 - Applicable Law . . . . . . . . . . . . . . . . . . . . . . . 20
10.09 - Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 20
10.10 - Costs and Expenses . . . . . . . . . . . . . . . . . . . . . 21
10.11 - No Waiver, Cumulative Remedies . . . . . . . . . . . . . . . 21
10.12 - Waiver of Rights of Subrogation, Reimbursement, Etc. . . . . 22
10.13 - Survival of Obligations; No Set-off. . . . . . . . . . . . . 22
10.14 - Guarantee in Addition to Other Obligations . . . . . . . . . 22
10.15 - Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 23
10.16 - Severability . . . . . . . . . . . . . . . . . . . . . . . . 23
10.17 - Successors and Assignees . . . . . . . . . . . . . . . . . . 23
10.18 - Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 23
10.19 - Effective Date . . . . . . . . . . . . . . . . . . . . . . . 23
GUARANTEE
THIS GUARANTEE is dated as of the 23rd day of May, 1994
BY: CHRYSLER FINANCIAL CORPORATION, a corporation incorporated
under the laws of the State of Michigan (the "Guarantor")
TO AND IN
FAVOUR OF: EACH OF THE GUARANTEED PARTIES, as hereinafter defined
- and -
ROYAL BANK OF CANADA, a Canadian chartered bank having its
head office in the City of Montreal, Quebec, Canada, and a
branch in the City of Toronto, Ontario, Canada, in its
capacity as Agent for the Lenders (the "Agent"),
- and -
CANADIAN IMPERIAL BANK OF COMMERCE, a Canadian chartered
bank having its head office in the City of Toronto, Province
of Ontario and a branch in the City of Toronto, Province of
Ontario in its capacity as a Co-Agent,
- and -
THE BANK OF NOVA SCOTIA, a Canadian chartered bank having
its head office in the City of Halifax, Province of Nova
Scotia and a branch in the City of Toronto, Province of
Ontario in its capacity as a Co-Agent
RECITALS
A. Chrysler Credit Canada Ltd. (the "Borrower") has requested that
the Agent, the Co-Agents and the Lenders enter into a Revolving Credit
Agreement dated as of May 23, 1994 (as the same may be amended, modified,
supplemented or restated from time to time, the "Credit Agreement") for the
purposes enumerated therein.
B. The Borrower is a wholly-owned Subsidiary of the Guarantor.
C. To induce the Lenders and the Agent to enter into the Credit
Agreement with the Borrower, and for other good and valuable consideration,
the Guarantor has agreed to enter into this Guarantee pursuant to which it
will guarantee the Borrower's Obligations under the Credit Agreement.
NOW THEREFORE for valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
ARTICLE I
INTERPRETATION
Section 1.01 - Definitions
In this Guarantee, unless something in the subject matter or
context is inconsistent therewith, capitalized terms used but not defined
in this Guarantee have the respective meanings attributed to them in the
Credit Agreement and:
"Accumulated Funding Deficiency" means any "accumulated funding
deficiency" as defined in Section 302 of ERISA.
"Applicable Laws" means, with respect to any Person, property,
transaction or event, all present or future applicable laws, statutes,
regulations, treaties, judgments and decrees and (whether or not having the
force of law) all applicable official directives, rules, consents,
approvals, authorizations, guidelines, orders and policies of any
governmental bodies or Persons having authority over such Person, property,
transaction or event.
"Canadian Corporation" means 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.
"Chartered Bank" means a bank named on Schedule I or Schedule II
to the Bank Act (Canada).
"Code" means the United States Internal Revenue Code of 1986, as
amended from time to time.
"Co-Agents" means Canadian Imperial Bank of Commerce and The Bank
of Nova Scotia when acting in their capacities as co-agents under the
Credit Agreement.
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Guarantor within the
meaning of Section 414(b) or (c) of the Code.
"Credit Agreement" shall have the meaning ascribed thereto in the
first recital.
"Domestic Subsidiary" means any Subsidiary other than a Foreign
Subsidiary.
"ERISA" means the United States Employee Retirement Income
Security Act of 1974, as amended from time to time.
"Finance Business" means (a) the small loan, personal finance,
consumer finance or instalment 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
instalments) 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 Subsidiary" means any Domestic Subsidiary that is
engaged primarily in the Finance Business.
"Foreign Subsidiary" means 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" means generally accepted accounting principles in the
United States of America in effect from time to time except that for the
purpose of determining compliance with the covenants set forth in Section
8.02, "GAAP" means generally accepted accounting principles in the United
States of America in effect on December 31, 1993 applied consistently with
those used in compiling the Guarantor's 1993 financial statements.
"Governmental Authority" means any nation or government, any
province, state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee" means this guarantee, as amended, modified,
supplemented or restated from time to time.
"Guaranteed Liabilities" means all indebtedness, liabilities and
obligations of the Borrower, present and future, direct and indirect,
absolute and contingent, matured and unmatured, at any time and from time
to time existing or arising under or by virtue of or otherwise in
connection with the Credit Agreement or any agreement or instrument
referred to therein or contemplated thereby, in each case, whether or not
any such indebtedness, liabilities or obligations are discharged, stayed or
otherwise affected by any proceeding referred to in Section 12.01(e) or (f)
of the Credit Agreement.
"Guaranteed Parties" means all the Persons who are now or who
hereafter become Lenders, Co-Agents or the Agent under the Credit
Agreement.
"Guarantor" means Chrysler Financial Corporation, a Michigan
corporation and its successors.
"Indebtedness" means, 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 Guarantor and its
Subsidiaries, the Guarantor) 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.
"Lender" means each of the banks who are now or become Lenders
under the Credit Agreement.
"Lien" means, 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 effects as any of the
foregoing).
"Multiemployer Plan" means a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan" means, at any particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Guarantor or a
Commonly Controlled Entity is (or if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an 'employer' as
such term is defined in Section 3(5) of ERISA.
"Proceedings" has the meaning ascribed thereto in Section
10.09(a).
"Prohibited Transaction" means any "prohibited transaction" as
defined in Section 406 of ERISA or Section 4975 of the Code.
"Real Estate Business" means the acquisition, development,
leasing, financing, management, maintenance and disposition of real
property, including, without limitation, automotive dealership facilities
and dealership site control arrangements.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Significant Subsidiary" means, at any particular time, (i) any
Finance Subsidiary and (ii) any other Subsidiary of CFC, the assets of
which constitute at least 5% of the consolidated assets of CFC and its
Subsidiaries as stated in the consolidated financial statements of CFC and
its Subsidiaries for the most recently completed fiscal quarter of CFC,
provided that the term "Significant Subsidiary" shall not include any
Special Purpose Subsidiary.
"Single Employer Plan" means any Plan which is not a
Multiemployer Plan.
"Special Purpose Subsidiary" means any Subsidiary created for the
sole purpose of purchasing assets from the Guarantor or any Finance
Subsidiary with the intention and for the purpose of using such assets in a
securitization transaction.
"Subsidiary" means, any corporation of which the Guarantor or one
or more Subsidiaries or the Guarantor and one or more Subsidiaries shall at
any 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.
"U.S. Business Day" means a Business Day which is not a legal
holiday in the State of Michigan.
"U.S. Credit Agreement" means the revolving credit agreement
dated as of May 23, 1994 among the Guarantor, the several commercial banks
party thereto, Chemical Bank as agent and Chemical Securities Inc. as
arranger.
Section 1.02 - Headings and Table of Contents
The division of this Guarantee into Articles and Sections and the
insertions of Headings and a Table of Contents are for convenience of
reference only and shall not affect the construction or interpretation of
this Guarantee.
Section 1.03 - References
Unless something in the subject matter or context is inconsistent
therewith, all references to Sections and Articles are to Sections and
Articles of this Guarantee. The words "hereto", "herein", "hereof",
"hereunder" and similar expressions refer to this Guarantee and not to any
particular Article, Section, paragraph or other portion hereof.
Section 1.04 - Rules of Interpretation
In this Guarantee, unless otherwise specifically provided, the
singular includes the plural and vice versa; "including" means "including,
without limitation,"; "month" means a calendar month; and "in writing" or
"written" includes printing, typewriting, or any electronic means of
communication capable of being visibly reproduced at the point of
reception, including telex, telecopier or telegraph.
Section 1.05 - Time
Except where otherwise indicated in this Guarantee, any reference
to a time shall mean local time in the City of Toronto, Province of
Ontario.
ARTICLE II
GUARANTEE
Section 2.01 - Guarantee
The Guarantor hereby irrevocably and unconditionally guarantees
to the Guaranteed Parties the punctual and complete payment and
satisfaction when due (whether at stated maturity, by acceleration or
otherwise), and at all times thereafter, of all the Guaranteed Liabilities
which are or may become at any time and from time to time owing or payable
by the Borrower to the respective Guaranteed Parties or which remain owing
and unpaid to the respective Guaranteed Parties.
ARTICLE III
PAYMENT
Section 3.01 - Payment
(a) The Guarantor agrees to make immediate payment to the Agent on
behalf of the Guaranteed Parties of all Guaranteed Liabilities owing or
payable to the respective Guaranteed Parties upon receipt of a demand for
payment therefor by the Agent to the Guarantor in writing.
(b) Each payment to be made by the Guarantor hereunder in respect of
the Guaranteed Liabilities shall be payable in the currency or currencies
in which such Guaranteed Liabilities are denominated, and shall be made
(i) without set-off or counterclaim, and
(ii) free and clear of and without deduction or withholding for
or on account of any Taxes unless the Guarantor is
compelled by Applicable Laws to make payment subject to
deduction or withholding of such Taxes.
(c) All Taxes in respect of this Guarantee or any amounts payable or
paid under this Guarantee shall be paid by the Guarantor when due and in
any event prior to the date on which penalties attach thereto. The
Guarantor will indemnify each Guaranteed Party against and in respect of
all such Taxes.
Without limiting the generality of the foregoing, if any Taxes or
amounts in respect thereof must be deducted or withheld from any amounts
payable or paid by the Guarantor hereunder, the Guarantor shall pay such
additional amounts as may be necessary to ensure that each of the
Guaranteed Parties receives a net amount equal to the full amount which it
would have received had payment not been made subject to deduction or
withholding of such Taxes. Within thirty (30) days of each payment by the
Guarantor hereunder of Taxes or in respect of Taxes, the Guarantor shall
deliver to the Agent satisfactory evidence (including originals, or
certified copies, of all relevant receipts) that such Taxes have been duly
remitted to the appropriate authority or authorities.
ARTICLE IV
OBLIGATIONS ABSOLUTE
Section 4.01 - Obligations Absolute
The obligations of the Guarantor hereunder are and shall be
absolute and unconditional and any monies or amounts expressed to be owing
or payable by the Guarantor hereunder which may not be recoverable from the
Guarantor on the footing of a guarantee shall be recoverable from the
Guarantor as a primary obligor and principal debtor in respect thereof.
ARTICLE V
OBLIGATIONS CONTINUING
Section 5.01 - Obligations Continuing
(a) The obligations of the Guarantor hereunder shall be continuing
and shall remain in full force and effect so long as any Lender's
Commitment remains in effect under the Credit Agreement and until all the
Guaranteed Liabilities have been paid and satisfied in full. The
obligations of the Guarantor hereunder shall not be satisfied, reduced or
discharged by any intermediate payment or satisfaction of the whole or any
part of the principal, interest, fees and other monies or amounts which
may at any time be or become owing or payable under or by virtue of or
otherwise in connection with the Credit Agreement.
(b) The obligations of the Guarantor hereunder shall continue to be
effective or shall be reinstated, as the case may be, if at any time any
payment which would otherwise have reduced the obligations of the Guarantor
hereunder (whether such payment shall have been by or on behalf of the
Borrower or by or on behalf of the Guarantor) is rescinded or reclaimed
from any of the Guaranteed Parties upon the insolvency, bankruptcy,
liquidation or reorganization of the Borrower or the Guarantor
or otherwise, all as though such payment had not been made.
ARTICLE VI
OBLIGATIONS NOT AFFECTED
Section 6.01 - Obligations Not Affected
The obligations of the Guarantor hereunder shall not be affected
or impaired by any act, omission, matter or thing whatsoever, occurring
before, upon or after any demand for payment hereunder (and whether or not
known to the Guarantor or any of the Guaranteed Parties) which, but for
this provision, might constitute a whole or partial defence to a claim
against the Guarantor hereunder or might operate to release or otherwise
exonerate the Guarantor from any of its obligations hereunder or otherwise
affect such obligations, whether occasioned by default of any of the
Guaranteed Parties or otherwise, and the Guarantor hereby irrevocably
waives any such defence it may now or hereafter have in any way relating to
any of the foregoing, including:
(a) any limitation of status or power, disability, incapacity or
other circumstance relating to the Borrower or any other Person, including
any insolvency, bankruptcy, liquidation, reorganization, readjustment,
composition, dissolution, winding-up or other proceeding involving or
affecting the Borrower or any other Person;
(b) any irregularity, defect, unenforceability or invalidity in
respect of any indebtedness or other obligation of the Borrower or any
other Person under the Credit Agreement or any other document or
instrument;
(c) any failure of the Borrower, whether or not without fault on its
part, to perform or comply with any of the provisions of the Credit
Agreement or to give notice thereof to the Guarantor;
(d) the taking or enforcing or exercising or the refusal or neglect
to take or enforce or exercise any right or remedy from or against the
Borrower or any other Person or their respective assets or the release or
discharge of any such right or remedies;
(e) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Borrower or any other Person;
(f) any amendment, variation, modification, supplement or replacement
of the Credit Agreement or any other document or instrument;
(g) any change in the ownership, control, name, objects, businesses,
assets, capital structure or constitution of the Borrower or the Guarantor;
(h) any merger or amalgamation of the Borrower or the Guarantor with
any Person or Persons;
(i) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction or by any present or future action of any
Governmental Authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of
the Guaranteed Liabilities or the obligations of the Guarantor under this
Guarantee; and
(j) any other circumstance (including, without limitation, any
existence of or reliance upon any representation by the Agent, any Co-Agent
or any Lender, but excluding complete, irrevocable payment) that might
otherwise constitute a legal or equitable discharge or defence of the
Borrower under the Credit Agreement or of the Guarantor in respect of its
guarantee hereunder.
Section 6.02 - Waiver
Without in any way limiting the provisions of Section 6.01
hereof, the Guarantor hereby waives notice of acceptance hereof, notice of
any liability of the Guarantor hereunder, notice or proof of reliance by
the Guaranteed Parties upon the obligations of the Guarantor hereunder, and
diligence, presentment, demand for payment on the Borrower, protest, notice
of dishonour or non-payment of any of the Guaranteed Liabilities, or other
notice or formalities to the Borrower of any kind whatsoever. The
Guarantor further hereby waives any requirement that any Guaranteed Party
protect, secure, perfect or insure any security interest or lien or any
property subject thereto or exhaust any right or take any action against
the Borrower or any other Person or entity or any collateral.
Section 6.03 - No Obligation to Take Action Against Borrower
Neither the Agent nor any of the other Guaranteed Parties shall
have any obligation to enforce any rights or remedies or to take any other
steps against the Borrower or any other Person or any property of the
Borrower or any other Person before the Agent is entitled to demand
payment and performance by the Guarantor of its liabilities and obligations
under this Guarantee, and the Guarantor hereby waives all benefit of
discussion. The obligations of the Guarantor hereunder are independent of
the Guaranteed Liabilities and a separate action or actions may be brought
and prosecuted against the Guarantor to enforce this Guarantee,
irrespective of whether any action is brought against the Borrower or
whether the Borrower is joined in any such action or actions.
Section 6.04 - Dealing with the Borrower and Others
The Lenders or the Agent, without releasing, discharging,
limiting or otherwise affecting in whole or in part the Guarantor's
obligations and liabilities hereunder and without the consent of or notice
to the Guarantor may,
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Borrower or any
other Person;
(b) take or abstain from taking securities or collateral from the
Borrower or from perfecting securities or collateral of the Borrower;
(c) release, discharge, compromise, realize, enforce or otherwise
deal with or do any act or thing in respect of (with or without
consideration) any and all collateral, mortgages or other security given by
the Borrower or any third party with respect to the obligations or matters
contemplated by the Credit Agreement;
(d) accept compromises or arrangements from the Borrower;
(e) apply all monies at any time received from the Borrower or from
securities upon such part of the Guaranteed Liabilities as the Guaranteed
Parties may see fit or change any such application in whole or in part from
time to time as the Guaranteed Parties may see fit; and
(f) otherwise deal with, or waive or modify their right to deal with,
the Borrower and all other Persons and securities as the Guaranteed Parties
may see fit.
Section 6.05 - Acknowledgement
The Guarantor hereby acknowledges communication of the terms of
the Credit Agreement and of all the provisions therein contained and
consents to and approves the same.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.01 - Representations and Warranties
The Guarantor represents and warrants to the Guaranteed Parties
on and as of the Effective Date as follows and acknowledges and confirms
that the Guaranteed Parties are relying upon such representations and
warranties in entering into the Credit Agreement and in making each
Borrowing available thereunder:
(a) the Guarantor and each of its Subsidiaries (i) is a corporation
duly organized, validly existing, and in good standing under the laws of
its jurisdiction of incorporation, amalgamation or continuance, as the case
may be, and (ii) 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 (ii) 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 Guarantor and its Subsidiaries
taken as a whole;
(b) the Guarantor and each of its Significant Subsidiaries has the
corporate power and authority to own its respective properties and to carry
on its business as now conducted; the Guarantor has full power and
authority to enter into and perform its obligations under this Guarantee
and this Guarantee has been duly authorized by all necessary corporate
action on the part of the Guarantor and, to the best of the knowledge of
the Guarantor, this Guarantee is not in violation of any Applicable Law;
(c) neither the execution and delivery of this Guarantee nor
compliance with the terms and provisions hereof as of the Effective Date
(i) conflicts with, violates, or results in a breach of any of the terms,
conditions or provisions of any Applicable Law applicable to the Guarantor
or any of its Significant Subsidiaries or, (ii) conflicts with, violates,
results in a breach of, or constitutes a default under, any restated
articles of incorporation or by-law provision of the Guarantor or any of
its Significant Subsidiaries or of any loan agreement, indenture, trust
deed or any other agreement or instrument to which the Guarantor or any of
its Significant Subsidiaries is a party or by which it or any of them is
bound;
(d) this Guarantee has been duly executed and delivered on behalf of
the Guarantor, and this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable against the Guarantor 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. No
authorization or approval or other action by, and no notice to or filing
with, any Governmental Authority is required for the due execution,
delivery and performance by the Guarantor of this Guarantee;
(e) no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Guarantor, threatened by or against the Guarantor or any of its
Subsidiaries or against any of its or their respective properties or
revenues, in which there is reasonable likelihood of an adverse
determination (i) with respect to this Guarantee, if such adverse
determination would have a material adverse effect on the ability of the
Guarantor to fulfil its obligations under this Guarantee or on the rights
and remedies of the Guaranteed Parties thereunder or (ii) which would, if
adversely determined, have a material adverse effect on the business,
operations, property or financial condition of the Guarantor and its
Subsidiaries taken as a whole;
(f) neither the Guarantor nor any of its Significant Subsidiaries is
in breach of any term of its incorporating instruments or of its by-laws
and, to the best of the knowledge of the Guarantor, neither the Guarantor
nor any of its Significant Subsidiaries is in breach of any material
mortgage, franchise, licence, which breach could materially and adversely
affect the financial condition of the Guarantor and its Significant
Subsidiaries taken as a whole;
(g) to the best of the Guarantor's knowledge, no Event of Default
under the Credit Agreement has occurred and is continuing and no other
event has occurred and is continuing which, with the giving or receipt of
notice or the lapse of time, or both, would constitute an Event of Default
under the Credit Agreement;
(h) the audited consolidated balance sheet of the Guarantor and its
Subsidiaries as at December 31, 1993, and the related audited 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 the Agent, present fairly the consolidated financial position of the
Guarantor 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 Guarantor 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, copies of which have been delivered to the Agent, present fairly the
consolidated financial condition of the Guarantor 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 Guarantor 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 Guarantor and its Subsidiaries taken as a whole, which was not
reflected in the foregoing unaudited statements or in the notes thereto;
(i) the information, exhibits and reports furnished by the Guarantor
to the Agent for the benefit of the Lenders contain no material
misstatement of fact nor do they omit to state a material fact which is
necessary to make any statement therein contained not misleading;
(j) between December 31, 1993 and the Effective Date under the Credit
Agreement, there has been no material adverse change in the business,
operations, property or financial or other condition of the Guarantor and
its Subsidiaries taken as a whole; and
(k) the Guarantor has filed all material income tax returns which
were required to be filed, paid or made provision for payment of all
material taxes (including interest and penalties) which are due and
payable, and provided adequate reserves established in accordance with GAAP
for the payment of any tax the payment of which is being contested.
Section 7.02 - Deemed Repetition
The representations and warranties contained in this Article VII
shall continue in effect so long as any Lender's Commitment remains in
effect under the Credit Agreement or any Guaranteed Liabilities remain
outstanding and unpaid and shall be deemed to be repeated on each Drawdown
Date (which for the purposes of this Section 7.02 shall exclude a
Conversion Date or a date on which a Libor Loan is reborrowed by way of
another Libor Loan or a date on which a Bankers' Acceptance is repaid by
way of Bankers' Acceptances) as if made on and as of each such date except
for the representations and warranties in Section 7.01(c)(i), (h) and (j)
which relate solely to an earlier date.
ARTICLE VIII
NEGATIVE COVENANTS
Section 8.01 - Affirmative Covenants
The Guarantor covenants and agrees that so long as any Lender's
Commitment remains in effect under the Credit Agreement or any Guaranteed
Liabilities remain outstanding and unpaid:
(a) Maintenance of Ownership Interest
The Guarantor will maintain ownership of 100% of the issued and
outstanding shares of capital stock of the Borrower which are
entitled to vote under all circumstances for the election of the
board of directors of the Borrower.
(b) Certificate
The Guarantor shall furnish to the Agent in sufficient numbers
for each Lender concurrently with the financial statements for
each quarterly accounting period and for each fiscal year of the
Borrower furnished pursuant to subparagraphs 10.01(1)(a)(i) and
10.01(1)(a)(ii) of the Credit Agreement, (A) a certificate in the
form and substance set out in Exhibit "A" of the Chairman of the
Board, the President, an Executive Vice President, a Vice
President or the Treasurer of the Guarantor, (B) an analysis
prepared and certified by such officer of the Borrower of the
covenant contained in Section 8.02(b) of this Guarantee and (C)
the analysis prepared, certified and delivered by an officer of
CFC to its bankers pursuant to Section 5.1(a)(iii) of the U.S.
Credit Agreement or any substitution or replacement thereof.
(c) Information to be Provided
Upon written request by any Lender through the Agent, the
Guarantor shall furnish promptly to such Lender copies of (i) all
such reports, if any, of the type a publicly held corporation
would generally make available to its shareholders as the
Guarantor shall make available to Chrysler Corporation, and (ii)
all regular and periodic reports which the Guarantor or any of
its Subsidiaries may be required to file with the Securities and
Exchange Commission or any similar or corresponding government
department, commission, board, bureau or agency, or with any
securities exchange.
Section 8.02 - Negative Covenants
The Guarantor covenants and agrees that so long as any Lender's
Commitment remains in effect under the Credit Agreement or any Guaranteed
Liabilities remain outstanding and unpaid:
(a) No Impairment of Borrower
The Guarantor will not cause or do any act, the effect of which
would be to impair the ability of the Borrower to perform its
obligations under the Credit Agreement.
(b) Fixed Charges Coverage Ratio
The Guarantor 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 Guarantor, or for the portion of any
fiscal year of the Guarantor ending with the last day of each
calendar quarter therein; "net earnings available for fixed
charges" and "fixed charges" being determined for the Guarantor
and for the Guarantor and its Subsidiaries on a consolidated
basis. For the purposes of this Section 8.02(b):
(i) "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 Guarantor;
(ii) "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;
(iii) 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 Guarantor 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; and
(iv) 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 (A) 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 (B) 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 acquisitions 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.
(c) Limitation on Liens
(1) The Guarantor 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 Guarantor 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
Finance Subsidiary;
(ii) any deposit of assets of the Guarantor 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
Guarantor 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 Guarantor or any of its Finance
Subsidiaries;
(iii) Liens created by any Finance Subsidiary in favour of
the Guarantor or a wholly-owned Subsidiary securing
indebtedness of such Finance Subsidiary to the
Guarantor or a wholly-owned Subsidiary (which Liens
cannot be transferred except to the Guarantor or to
another wholly-owned Subsidiary);
(iv) any deposits to secure public or statutory obligations
of the Guarantor 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 following
events or circumstances: (A) any Person shall engage
in any Prohibited Transaction involving any Plan, (B)
any Accumulated Funding Deficiency, whether or not
waived, shall exist with respect to any Plan, (C) 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 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, or (D) any
Single Employer Plan shall terminate for purposes of
Title IV of ERISA;
(v) any purchase money Liens in respect of fixed assets or
other physical or real properties heretofore or
hereafter acquired by the Guarantor 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 Guarantor 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 Guarantor 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 Guarantor 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
Guarantor or its Finance Subsidiary;
(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 financing entered into in the
ordinary course of the Finance Business; and
(xiii) Liens to secure Indebtedness and other obligations of
the Guarantor or any of its Finance Subsidiaries not
otherwise permitted by this Section 8.02(c), but only
to the extent that the aggregate amount of Indebtedness
and other obligations secured thereby does not at any
time exceed US$100,000,000.
(2) The Guarantor 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 Section 8.02(c)(1) 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.
(3) Nothing in this Section 8.02(c) shall allow the Borrower and its
Subsidiaries to create, assume or incur or suffer to be created, assumed or
incurred or to exist any Lien not permitted by the provisions of the Credit
Agreement.
ARTICLE IX
NOTICE
Section 9.01 - Notice
Any notice or demand to or upon the Guarantor to be effective,
shall be in writing or by telecopy or telegraph, and shall not be effective
until received and shall be addressed as follows:
Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan
U.S.A. 48034
Attention: Treasurer
Telecopier: (810) 948-3801
Any such notice or demand, if telecopied before 4:30 p.m. on a
U.S. Business Day, shall be deemed to have been received on that day, and,
if telecopied after 4:30 p.m. on a U.S. Business Day, shall be deemed to
have been received on the U.S. Business Day next following the date of
transmission.
ARTICLE X
MISCELLANEOUS
Section 10.01 - Amendment, Etc.
No amendment, modification or waiver of any provision of this
Guarantee or consent to any departure by the Guarantor or any other Person
from any provision of this Guarantee will in any event be effective unless
it is signed by the Guarantor and the Agent, with the written consent of
all the Guaranteed Parties, on behalf of the Guaranteed Parties.
Section 10.02 - Assignment, Transfer and Participation
(a) The Guarantor hereby consents to any assignment or transfer of,
or any grant of the participation in, any rights, benefits or obligations
of, a Lender in respect of this Guarantee so long as the participation or
assignment of such Lender's interest in the Credit Agreement is effected in
accordance with the provisions of the Credit Agreement.
(b) Notwithstanding the provisions of Section 10.02(a), the Guarantor
shall upon request made by an assignee from a Lender, execute and deliver
such assurances as may be reasonably requested by such assignee to confirm
its entitlement to the rights and benefits hereunder so assigned and
transferred to it and the liability of the Guarantor to the assignee
hereunder.
Section 10.03 - Acknowledgement by CFC re: Increased Commitments
The Guarantor acknowledges and agrees that any Lender which
increases its Commitment pursuant to the provisions of Section 17.06 of the
Credit Agreement shall also be entitled to the benefit of this Guarantee in
respect of the increased amount of its Commitment and the obligations of
the Guarantor under this Guarantee shall in no way be varied or diminished
by virtue of such increase in Commitment; and the Guarantor further
acknowledges and agrees that this Guarantee shall extend to all
Obligations, including any Borrowings under the Credit Agreement after any
increase in the Total Commitment resulting from the increase in a Lender's
Commitment pursuant to Section 17.06 of the Credit Agreement.
Section 10.04 - Acknowledgement by CFC re: New Lenders
The Guarantor acknowledges and agrees that any Chartered Bank
which becomes a New Lender pursuant to the provisions of Section 17.05 of
the Credit Agreement shall be entitled to the benefit of this Guarantee as
if such New Lender had been a Lender as at the time of execution of the
Guarantee and the obligations of the Guarantor under this Guarantee shall
in no way be varied or diminished by virtue of the addition of such New
Lenders; and the Guarantor further acknowledges and agrees that this
Guarantee shall extend to all Obligations including any Borrowings under
the Credit Agreement after any increases in the Total Commitment resulting
from the addition of New Lenders pursuant to Section 17.05 of the Credit
Agreement.
Section 10.05 - Exchange of Information
The Guarantor agrees that the Agent and each Lender may disclose
to any prospective assignee or participant, on a confidential basis, such
information concerning the financial condition of the Guarantor or any
Subsidiary which the Borrower or Guarantor is required to provide to the
Agent or the Lenders under the Credit Agreement or this Guarantee.
Section 10.06 - Successor Agent
In the event that the Agent for the time being under the Credit
Agreement shall resign or be removed and a successor agent thereafter shall
be appointed in accordance with Section 14.07 of the Credit Agreement, then
upon such successor agent agreeing in writing to be bound by the provisions
of this Guarantee as Agent hereunder, all references herein to Agent in
this Guarantee shall be deemed to be references to such successor agent as
and from such date and such successor agent shall receive and become vested
with all the rights, powers, privileges and duties of the retiring or
removed Agent and the retiring or removed Agent shall be discharged from
its further duties and obligations as Agent under this Guarantee.
Section 10.07 - Judgment Currency
If for the purposes of obtaining judgment in any court in any
jurisdiction with respect to this Guarantee, it becomes necessary to
convert into the currency of such jurisdiction (herein called the "Judgment
Currency") any amount due hereunder in any currency other than the Judgment
Currency, then conversion shall be made at the rate of exchange prevailing
on the Business Day before the day on which judgment is given. For this
purpose, "rate of exchange" means the rate at which the Agent would, on the
relevant date at or about 12:00 noon (Toronto time), be prepared to sell a
similar amount of such currency in Toronto against the Judgment Currency.
In the event that there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment is given and
the date of payment of the amount due, the Guarantor will, on the date of
payment, pay such additional amounts (if any) as may be necessary to ensure
that the amount paid on such date is the amount in the Judgment Currency
which when converted at the rate of exchange prevailing on the date of
payment is the amount then due under this Guarantee in such other currency.
Any additional amount due from the Guarantor under this Section 10.07 will
be due as a separate debt and shall not be affected by judgment being
obtained for any other sums due under or in respect of this Guarantee.
Section 10.08 - Applicable Law
This Guarantee shall be conclusively deemed to be a contract made
under, and shall for all purposes be governed by, and construed and
interpreted in accordance with, the laws of the Province of Ontario and the
federal laws of Canada applicable therein in effect from time to time
without prejudice to or limitation of any other rights or remedies
available under the laws of any jurisdiction where property or assets of
the Guarantor may be found.
Section 10.09 - Jurisdiction
(a) The Guarantor hereby irrevocably agrees that any suits, actions
or proceedings arising out of or in connection with this Guarantee
(collectively "Proceedings") may be brought in any Michigan State Court or
any U.S. Federal Court sitting in the State of Michigan or any court in the
Province of Ontario and submits and attorns to the non-exclusive
jurisdiction of each such court.
(b) The Guarantor hereby irrevocably waives any objections which it
may have now or hereafter to the laying of the venue of any Proceedings in
any court referred to in paragraph (a) and any claim that any such
Proceedings have been brought in an inconvenient forum and further
irrevocably agrees that a judgment in any Proceedings brought in any such
court shall be conclusive and binding upon the Guarantor and may be
enforced in any courts to the jurisdiction of which such parties may be
subject by Proceedings upon such judgment.
(c) Nothing contained in this Section 10.09 shall limit the right of
the Agent or any other Guaranteed Party to take Proceedings against the
Guarantor in any other court of competent jurisdiction nor shall the taking
of Proceedings in one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction, whether concurrently or not.
(d) The Guarantor hereby irrevocably:
(i) appoints the Borrower at its address for service or
delivery of notice in the Credit Agreement as its agent
for service of process in the Province of Ontario in
connection with any Proceedings in the Province of
Ontario and consents to process being served in any
Proceedings in the Province of Ontario by delivering or
transmitting a true copy thereof to the Borrower at
such address;
(ii) agrees that service in accordance with the provisions
of clause 10.9(d)(i) shall be deemed in every respect
effective service of process upon the Guarantor in any
such Proceedings and shall, to the fullest extent
permitted by law, be taken and be held to be valid
personal service upon and personal delivery to the
Guarantor; and
(iii) consents generally to the fullest extent permitted by
law in respect of any Proceedings to the giving of any
relief and the issue of any process in connection with
such Proceedings including the making, enforcement or
execution against any property whatsoever
(irrespective of its use or intended use) of any order
or judgment which may be made or given in such
Proceedings.
(e) Each of the Guarantor and the Guaranteed Parties hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of
or relating to the Credit Agreement or this Guarantee, the transactions
contemplated hereby or thereby or the actions of the Guarantor or any
Guaranteed party in the negotiation, administration, performance or
enforcement hereof or thereof.
Section 10.10 - Costs and Expenses
The Guarantor agrees, on demand, to pay or reimburse each
Guaranteed Party for all costs, fees and expenses (other than legal fees
and disbursements) incurred in connection with the enforcement or
preservation of any rights under this Guarantee and under any other
documents prepared in connection herewith or therewith, and the reasonable
fees and disbursements of one firm of counsel to the Guaranteed Parties.
Section 10.11 - No Waiver, Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of
the Agent or the other Guaranteed Parties, any right, remedy, power or
privilege hereunder or under the Credit Agreement, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder or under the Credit Agreement preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges
herein and under the Credit Agreement are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
Section 10.12 - Waiver of Rights of Subrogation, Reimbursement, Etc.
The Guarantor hereby irrevocably waives any claim or other rights
that it may now or hereafter acquire against the Borrower that arise from
the existence, payment, performance or enforcement of the Guaranteed
Liabilities under this Guarantee or the Credit Agreement, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim
or remedy of any Guaranteed Party against the Borrower or any collateral,
whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including the right to take or receive
from the Borrower, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such
claim, remedy or right. If any amount shall be paid to the Guarantor in
violation of the preceding sentence at any time prior to the later of the
payment in full of the Guaranteed Liabilities and all other amounts payable
under this Guarantee and the termination of the Commitments, such amount
shall be held in trust for the benefit of the Guaranteed Parties and shall
forthwith be paid to the Agent to be credited and applied to the Guaranteed
Liabilities and all other amounts payable under this Guarantee, whether
matured or unmatured, in accordance with the terms of the Credit Agreement,
or to be held as collateral for any Guaranteed Liabilities or other amounts
payable under this Guarantee thereafter arising. The Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Credit Agreement and that the
waiver set forth in this Section 10.12 is knowingly made in contemplation
of such benefits.
Section 10.13 - Survival of Obligations; No Set-off
Without prejudice to the survival of the other obligations of the
Guarantor hereunder, the obligations of the Guarantor under Section 3.01(b)
and (c) shall survive payment in full of the Guaranteed Liabilities.
All payments to be made by or on behalf of the Guarantor
hereunder shall be made without giving effect to any defence or right of
set-off or counterclaim which may be asserted by the Borrower or the
Guarantor.
Section 10.14 - Guarantee in Addition to Other Obligations
The obligations of the Guarantor under this Agreement are in
addition to and not in substitution for any other obligations to the Agent
or to any of the Guaranteed Parties in relation to the Credit Agreement and
any guarantees or security at any time held by or for the benefit of any of
them.
Section 10.15 - Entire Agreement
This Guarantee, including all documents contemplated hereby,
constitutes the entire agreement between the parties with respect to the
subject matter and supersedes all prior negotiations, undertakings,
representations and understandings.
Section 10.16 - Severability
Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining
provisions and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 10.17 - Successors and Assignees
This Agreement shall be binding upon and inure to the benefit of
the Guarantor and the Agent and the other Guaranteed Parties and their
respective successors and permitted assignees, except that the Guarantor
may not assign any of its obligations hereunder.
Section 10.18 - Counterparts
This Guarantee and the acceptance thereof may be executed in any
number of separate counterparts and all said counterparts taken together
shall be deemed to constitute one and the same instrument.
Section 10.19 - Effective Date
This Guarantee shall become effective on the Effective Date.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
duly executed and delivered by its proper and duly authorized officers as
of the day and year first above written.
CHRYSLER FINANCIAL CORPORATION
By: "David A. Robison"
Title: "Vice President and Treasurer"
The undersigned hereby accept the foregoing Guarantee as of the
day and year first above written.
ROYAL BANK OF CANADA
As Agent
By: "David W. Cox"
Title: "Senior Manager, Loan Syndications
and Asset Sales"
CANADIAN IMPERIAL BANK OF COMMERCE
As Co-Agent
By: "Harold Chataway"
Title: "Managing Director
Automotive Group
North American Corporate Banking"
THE BANK OF NOVA SCOTIA
As Co-Agent
By: "Cynthia P. Thomas"
Title: "Senior Relationship Manager"
By: "Anthony S. Courtright"
Title: "Unit Head"
ROYAL BANK OF CANADA
By: "R.E. (Ron) Stanley"
Title: "Senior Vice Prsident
Corporate Banking - Multinational"
By: "Glen D. Carter"
Title: "Senior Manager
Corporate Banking - Multinational"
CANADIAN IMPERIAL BANK OF
COMMERCE
By: "Harold Chataway"
Title: "Managing Director
Automotive Group
North American Corporate Banking"
THE BANK OF NOVA SCOTIA
By: "Cynthia P. Thomas"
Title: "Senior Relationship Manager"
By: "Anthony S. Courtright"
Title: "Unit Head"
BANK OF MONTREAL
By: "Surjit Rajpal"
Title: "Managing Director
Diversified Corporate Accounts,
Corporate Banking"
By: "Kevin J. Malone"
Title: "Director"
THE TORONTO-DOMINION BANK
By: "Karl H. Schulz"
Title: "Assistant Vice President
Corporate & Investment Banking Group"
BANK OF AMERICA CANADA
By: "Jai S. Menon"
Title: "Vice President"
CHEMICAL BANK OF CANADA
By: "William T. Carrothers"
Title: "Vice President"
By: "Owen G. Roberts"
Title: "Vice President"
CREDIT LYONNAIS CANADA
By: "David J. Farmer"
Title: "Vice President"
CREDIT SUISSE CANADA
By: "Alain Daoust"
Title: "Associate"
By: "Angelo Bisutti"
Title: "Associate"
MORGAN BANK OF CANADA
By: "Katharine B. Stevenson"
Title: "Vice President"
NATIONAL BANK OF CANADA
By: "Lili L. Shain"
Title: "Vice President
North American Corporate Banking"
By: "Anne L. Brown"
Title: "Manager"
ABN AMRO BANK CANADA
By: "Joseph Cavanaugh"
Title: "Vice President
Corporate Banking"
By: "David Lam"
Title: "Manager, Credit"
BANQUE NATIONALE DE PARIS (CANADA)
By: "Mark B. Kolada"
Title: "Vice President & Deputy
Branch Manager"
By: "Linda L. Barrett"
Title: "Account Officer"
SWISS BANK CORPORATION (CANADA)
By: "Blaise Ganguin"
Title: "Associate Director
Merchant Banking"
By: "Robin V.J. Scott"
Title: "Director
Merchant Banking"
UNION BANK OF SWITZERLAND (CANADA)
By: "Cheryl Tibbetts"
Title: "Senior Account Officer"
By: "Mark O. Bohn"
Title: "Assistant Vice President
Corporate & Institutional Banking"
DAI-ICHI KANGYO BANK (CANADA)
By: "M. Takemoto"
Title: "Vice President
Corporate Banking"
DRESDNER BANK CANADA
By: "William J. Eeuwes"
Title: "Vice President"
By: "Ramona Sankar"
Title: "Assistant Treasurer"
NATIONAL WESTMINSTER BANK OF CANADA
By: "Neil L. Stride"
Title: "Vice President"
By: "Paula McArdle"
Title: "Assistant Vice President"
SOCIETE GENERALE (CANADA)
By: "Eric Dhoste"
Title: "Senior Vice President
Ontario & Western Canada"
By: "Duncan Irvine
Title: "Senior Manager
Corporate Banking"
THE BANK OF TOKYO CANADA
By: "Ted S. Vanderlaan"
Title: "Assistant Vice President"