Exhibit 10-H
CONFORMED COPY
LONG TERM
RECEIVABLES PURCHASE AGREEMENT
_______________
CHRYSLER FINANCIAL CORPORATION
CHRYSLER CREDIT CORPORATION
U.S. AUTO RECEIVABLES COMPANY
AMERICAN AUTO RECEIVABLES COMPANY
_______________
CHEMICAL BANK,
as Agent
and
as Administrative Agent
_______________
Dated as of May 23, 1994
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . 1
SECTION 2. AMOUNT AND TERMS OF LONG TERM COMMITMENTS. . . . . . . . . . 2
2.1 Long Term Commitments . . . . . . . . . . . . . . . . . . . . 2
2.2 Related Documents . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Procedure for Purchase. . . . . . . . . . . . . . . . . . . . 2
2.4 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Termination or Reduction of Long Term Commitments . . . . . . 4
2.6 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.7 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . 4
2.8 Addition of Retail Sellers. . . . . . . . . . . . . . . . . . 5
2.9 Additional Commitments. . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 5
3.1 Corporate Existence; Compliance with Law. . . . . . . . . . . 5
3.2 Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 No Legal Bar. . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 No Material Litigation. . . . . . . . . . . . . . . . . . . . 6
3.5 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Investment Company Act; Other Regulations . . . . . . . . . . 6
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . 7
4.1 Conditions to Effectiveness of This Long Term RPA . . . . . . 7
4.2 Notice of Effective Date. . . . . . . . . . . . . . . . . . . 8
4.3 Conditions to Each Purchase . . . . . . . . . . . . . . . . . 8
4.4 Conditions to Addition of Retail Seller . . . . . . . . . . . 9
SECTION 5. COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2 Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.3 Ownership of Retail Sellers and Wholesale Seller. . . . . . . 9
5.4 Maintenance of Separate Existence . . . . . . . . . . . . . . 9
SECTION 6. GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7. COMMITMENT TERMINATION EVENTS. . . . . . . . . . . . . . . . 11
SECTION 8. THE AGENT AND ADMINISTRATIVE AGENT . . . . . . . . . . . . . 12
8.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.2 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . 13
8.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . . . . 13
8.4 Reliance by Agent and Administrative Agent. . . . . . . . . . 13
8.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . 14
8.6 Non-Reliance on Agent, Administrative Agent and Other
Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 15
8.8 Agent in Its Individual Capacity. . . . . . . . . . . . . . . 15
8.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . 15
8.10 Successor Administrative Agent. . . . . . . . . . . . . . . . 16
SECTION 9. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . 16
9.1 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . 16
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.3 No Waiver; Cumulative Remedies. . . . . . . . . . . . . . . . 18
9.4 Survival of Representations and Warranties. . . . . . . . . . 18
9.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . 18
9.6 Successors and Assigns; Participations; Purchasing
Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.7 Clearing Accounts . . . . . . . . . . . . . . . . . . . . . . 22
9.8 Adjustments; Set-off. . . . . . . . . . . . . . . . . . . . . 23
9.9 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 24
9.10 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 24
9.11 Integration . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . 24
9.13 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . 24
9.14 Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . 25
ANNEX
1 Definitions
SCHEDULE
I Long Term Commitments
EXHIBITS
A Addendum
B Long Term Retail PSA
C Long Term Wholesale Series Supplement
D Effective Date Opinion
E Assignment and Acceptance
F Form of New Bank Supplement
G Form of Long Term Commitment Increase Supplement
LONG TERM RECEIVABLES PURCHASE AGREEMENT, dated as of May 23,
1994, among CHRYSLER FINANCIAL CORPORATION, a Michigan corporation ("CFC"
or the "Company"), CHRYSLER CREDIT CORPORATION, a Delaware corporation
("CCC"), U.S. AUTO RECEIVABLES COMPANY, a Delaware corporation, in its
capacity as originator of the Wholesale Master Trust referred to below and
seller of receivables under the Wholesale PSA referred to below (in such
capacity, the "Wholesale Seller"), AMERICAN AUTO RECEIVABLES COMPANY, a
Delaware corporation, and the other special purpose subsidiaries of CFC
from time to time parties hereto in their capacities as sellers of
undivided interests in Retail Pooled Property represented by Retail Senior
Certificates (each, in such capacity, a "Retail Seller"), the several
commercial banks from time to time parties to this Long Term RPA (the
"Banks") and CHEMICAL BANK, a New York banking corporation, as agent for
the Banks hereunder (in such capacity, the "Agent") and as administrative
agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, CFC, CCC, the Wholesale Seller and the Retail Seller
have requested that the Banks agree to purchase undivided participating
interests in Retail Pooled Property and in Wholesale Trust Assets (each, as
hereinafter defined);
WHEREAS, subject to the terms and conditions hereof, the Banks
are willing to make such purchases;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. The capitalized terms used herein which are
defined in, or by reference in, Annex 1 hereto shall have the meanings
specified therein.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Long Term RPA shall have the
defined meanings when used in the Related Documents or any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in the Related Documents, and 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 Long Term RPA shall refer to this Long
Term RPA as a whole and not to any particular provision of this Long Term
RPA, and Section, subsection, Schedule and Exhibit references are to this
Long Term RPA unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LONG TERM COMMITMENTS
2.1 Long Term Commitments. Subject to the terms and conditions
hereof, during the Long Term Commitment Period each Bank severally agrees
to purchase from the Retail Sellers (each such purchase, a "Retail
Purchase") undivided participating interests in Retail Pooled Property and
to purchase from the Wholesale Seller (each such purchase, a "Wholesale
Purchase") undivided participating interests in Wholesale Trust Assets in
amounts such that at any one time such Bank's Commitment Percentage of the
Aggregate Invested Amount shall not exceed the amount of such Bank's Long
Term Commitment, provided that the Wholesale Aggregate Senior Invested
Amount shall not, after giving effect to any proposed Wholesale Purchase,
exceed the Wholesale Senior Certificate Sublimit.
2.2 Related Documents. (a) Retail Purchases shall be made
pursuant to the terms and conditions of the Long Term Retail PSA, and each
Bank's undivided participating interest in the Retail Pooled Property shall
be evidenced by a Retail Senior Certificate issued to such Bank pursuant to
the Long Term Retail PSA.
(b) Wholesale Purchases shall be made pursuant to the terms and
conditions of the Long Term Wholesale Series Supplement, and each Bank's
undivided participating interest in the Wholesale Trust Assets shall be
evidenced by a Wholesale Senior Certificate issued to such Bank pursuant to
the Long Term Wholesale Series Supplement.
2.3 Procedure for Purchase. The Sellers may utilize the Long
Term Commitments during the Long Term Commitment Period on any Distribution
Date or any other Business Day, provided that the Company shall give the
Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, (a) three
Business Days prior to the requested Purchase Date, if all or any part of
the requested Purchase is to initially bear interest at a rate based on the
LIBO Rate or (b) one Business Day prior to the requested Purchase Date,
otherwise), specifying (i) the amount to be purchased, (ii) the requested
Purchase Date, (iii) whether the Purchase is to be a Retail Purchase, a
Wholesale Purchase or a combination thereof, (iv) if the Purchase is to be
entirely or partly a Wholesale Purchase and is made on a Wholesale
Distribution Date, the respective amounts of such Wholesale Purchase which
shall initially bear interest at a rate based on the LIBO Rate and at a
rate based on the Base Rate and (v) if any amount of such Purchase shall
bear interest based on the LIBO Rate, the date of the succeeding
Distribution Date; it being understood that (A) any Wholesale Purchase made
on a day other than a Wholesale Distribution Date shall bear interest based
on the Base Rate until the following Wholesale Distribution Date and
thereafter shall bear interest based on the LIBO Rate or the Base Rate, as
selected pursuant to the Long Term Wholesale Series Supplement, and (B) any
Retail Purchase made on a day other than a Retail Distribution Date shall
bear interest based on the Base Rate until the following Retail
Distribution Date and thereafter shall bear interest based on the LIBO
Rate. On each Purchase Date the Purchases under the Long Term Commitments
shall be in an aggregate amount equal to at least $100,000,000. Upon
receipt of any such notice from the Company, the Administrative Agent shall
promptly notify each Bank thereof. Each Bank shall (subject to subsection
9.7(b)) deposit in its Clearing Account an amount in immediately available
funds equal to the amount of its pro rata share of each Purchase prior to
11:00 A.M., New York City time, on the Purchase Date requested by the
Company. The Agent shall, pursuant to subsection 9.7(a), cause such amount
to be withdrawn from each such Clearing Account and shall make the
aggregate amount so withdrawn available to the Company for the benefit of
the Sellers by depositing the proceeds thereof in the account of the
Company with the Agent.
2.4 Fees.
(a) CCC agrees to pay to the Agent, for the ratable account of
the Banks, a facility fee for each day from and including the Effective
Date to but excluding the later of (i) the last day of the Long Term
Commitment Period and (ii) the date on which the Aggregate Invested Amount
shall have been reduced to zero (such later date, the "Final Fee Payment
Date"). Such fee shall be payable quarterly in arrears on (A) the first
Business Day of each January, April, July and October (for the three-month
period (or portion thereof) ended on the last day of the immediately
preceding month) and (B) on the Final Fee Payment Date (for the period
ended on such date for which no payment has been received pursuant to
clause (A) above) and shall be computed for each day during such period at
a rate per annum equal to 0.1875 of 1% of the Long Term Aggregate
Commitment Amount in effect on such day (or, if the Long Term Commitments
shall have been terminated, on the Aggregate Invested Amount on such day).
(b) Facility fees shall be calculated on the basis of a 365- or
366-day year, as the case may be, for actual days elapsed. Facility fees
that are not paid when due shall bear interest, payable on demand, from the
date when due until paid in full (both before and after judgment) at the
Default Rate.
(c) CCC agrees to pay the Administrative Agent a fee of $2000
per month with respect to each calendar month during which the Aggregate
Invested Amount exceeds zero at any time occurring during the period from
the first day of the calendar month following the calendar month in which
the Effective Date occurs until the Aggregate Invested Amount is zero and
the Long Term Commitments have terminated, payable in arrears on the last
Business Day of each such month.
(d) If any Bank becomes an "affected Purchaser" under Section
11.3(f)(i) of the Long Term Retail PSA or an "affected Bank Series
Certificateholder" under Section 8.5(i) of the Long Term Wholesale Series
Supplement following any "Change in Law" (as defined therein), CCC shall
thereafter increase that portion of the facility fee payable to such
affected Bank under paragraph (a) of this subsection 2.4 to a level, which,
in the opinion of such affected Bank, will adequately compensate such
affected Bank for the costs referred to in such agreements. The Company
may from time to time reduce the compensation to be received pursuant to
this paragraph (d) by any affected Bank as a result of any Change in Law,
to the average compensation (the "Average Compensation") the Company has
agreed, as provided above, to pay the affected Banks as a result of such
Change in Law (such average compensation to be measured by a percentage of
the aggregate Long Term Commitments of such affected Banks).
2.5 Termination or Reduction of Long Term Commitments. The CFC
Parties shall have the right, upon not less than five Business Days' notice
to the Agent, to terminate the Long Term Commitments or, from time to time,
to reduce the amount of Long Term Commitments. Any such reduction shall be
in an amount equal to $100,000,000 or a whole multiple of $1,000,000 in
excess thereof and shall reduce permanently the Long Term Commitments then
in effect.
2.6 Interest. (a) Each Retail Senior Certificate shall bear
interest as set forth in the Long Term Retail PSA.
(b) Each Wholesale Senior Certificate shall bear interest as set
forth in the Long Term Wholesale Series Supplement.
2.7 Pro Rata Treatment and Payments. (a) Each Purchase
hereunder, each payment by CCC on account of any facility fee hereunder and
any reduction of the Long Term Commitments of the Banks shall be made pro
rata according to the respective Commitment Percentages of the Banks. All
payments (including prepayments) by the Sellers on the Certificates and
with respect to fees 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.
(b) Unless the Agent shall have been notified in writing by any
Bank prior to a Purchase Date that such Bank will not make the amount that
would constitute its Commitment Percentage of the Purchase on such date
available to the Agent, the Agent may assume that such Bank has made such
amount available to the Agent on such Purchase Date, and the Agent may, in
reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is made available to the Agent on a
date after such Purchase Date, such Bank shall pay to the Agent on demand
an amount equal to the product of (i) the daily average Effective Federal
Funds Rate during such period, times (ii) the amount of such Bank's
Commitment Percentage of such Purchase, times (iii) a fraction the
numerator of which is the number of days that elapse from and including
such Purchase Date to the date on which such Bank's Commitment Percentage
of such Purchase shall have become immediately available to the Agent and
the denominator of which is 360. A certificate of the Agent submitted to
any Bank with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Bank's Commitment
Percentage of such Purchase is not in fact made available to the Agent by
such Bank within three Business Days of such Purchase Date, the Agent shall
be entitled to recover such amount with interest thereon at the Base Rate
on demand, from the Company.
2.8 Addition of Retail Sellers. Subject to the terms and
conditions hereof, from time to time a special purpose subsidiary of CFC
may become an additional Retail Seller party hereto by executing an
Additional Seller Supplement hereto and to the Long Term Retail PSA. From
and after the Retail Addition Date with respect to each additional Retail
Seller through but excluding the Retail Addition Date with respect to any
successive additional Retail Seller, all Retail Purchases shall be made
with the Retail Seller which last became party hereto and all other Retail
Sellers shall be party hereto and to the Long Term Retail PSA solely with
respect to Retail Pooled Property in which they previously sold
participating interests.
2.9 Additional Commitments. The Company may, with the consent of
the Agent (which shall not be unreasonably withheld), (a) add any
additional Commercial Bank as a Bank pursuant to a New Bank Supplement,
substantially in the form of Exhibit F, duly executed and delivered by the
Company, the Agent and such Commercial Bank, whereupon such Commercial Bank
(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 Long Term RPA and the Related Documents,
Schedule I hereto shall be deemed to be amended to add the name and Long
Term Commitment of such New Bank and the Long Term Aggregate Commitment
Amount shall be increased by the amount of such New Bank's Long Term
Commitment, effective as of the date on which any such New Bank becomes a
Bank pursuant to the provisions of this subsection 2.9(a), or (b) enable an
existing Bank to increase its Long Term Commitment pursuant to a Long Term
Commitment Increase Supplement, substantially in the form of Exhibit G,
duly executed and delivered by the Company, the Agent and such Bank,
whereupon such Bank shall be bound by and entitled to the benefits of this
Long Term RPA and the Related Documents with respect to the full amount of
its Long Term Commitment as so increased, Schedule I hereto shall be deemed
to be amended to add the increased Long Term Commitment of such Bank, and
the Long Term Aggregate Commitment Amount shall be increased by the amount
of such Bank's additional Long Term Commitment, effective as of the date on
which any such Bank increases its Long Term Commitment pursuant to the
provisions of this subsection 2.9(b). The CFC Parties shall promptly
execute and deliver appropriate Retail Senior Certificates and Wholesale
Series Certificates to each New Bank and, upon surrender of its old
Certificates, to each Bank increasing its Long Term Commitment.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Long Term RPA and to make
the Purchases the Company hereby represents and warrants to the Agent and
each Bank that:
3.1 Corporate Existence; Compliance with Law. Each CFC Party
(a) is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (b) has the corporate power and
authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation and in
good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification except where the failure so to qualify could not, in the
aggregate have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, have a Material Adverse Effect.
3.2 Corporate Power; Authorization; Enforceable Obligations.
Each CFC Party has the corporate power and authority, and the legal right,
to make, deliver and perform this Long Term RPA and the Related Documents
and has taken all necessary corporate action to authorize the Purchases on
the terms and conditions of this Long Term RPA and the Related Documents
and to authorize the execution, delivery and performance of this Long Term
RPA and the Related Documents. No consent or authorization of, filing with
or other act by or in respect of, any Governmental Authority or any other
Person is required in connection with the Purchases hereunder or with the
execution, delivery, performance, validity or enforceability of this Long
Term RPA or the Related Documents except such consents, authorizations or
filings as have been obtained or made. This Long Term RPA has been, and
each Related Document will be, duly executed and delivered on behalf of
each CFC Party party thereto. This Long Term RPA constitutes, and each
Related Document when executed and delivered will constitute, a legal,
valid and binding obligation of each CFC Party party thereto enforceable
against such CFC Party 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 general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.3 No Legal Bar. The execution, delivery and performance of
this Long Term RPA and the Related Documents, the Purchases hereunder and
the use of the proceeds thereof will not violate the certificate or
articles of incorporation, by-laws, other organizational or governing
documents, any Requirement of Law or any Contractual Obligation of any CFC
Party.
3.4 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 CFC Party or against any of its or their respective properties or
revenues (a) with respect to this Long Term RPA or the Related Documents or
any of the transactions contemplated hereby, or (b) which could have a
Material Adverse Effect.
3.5 No Default. No Commitment Termination Event has occurred
and is continuing.
3.6 Investment Company Act; Other Regulations. No CFC Party is
an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness of This Long Term RPA. This
Long Term RPA shall become effective on the date (the "Effective Date")
that the Agent shall have received the following:
(a) Agreement. (i) This Long Term RPA, executed and delivered
by a duly authorized officer of each CFC Party party hereto and (ii)
from each of the Persons listed on Schedule I, an executed Addendum.
(b) Long Term Retail PSA. (i) The Long Term Retail PSA,
executed and delivered by a duly authorized officer of each CFC Party
party thereto and (ii) a certificate of a Responsible Officer of the
Company that the conditions to the effectiveness of the Long Term
Retail PSA set forth therein have been satisfied.
(c) Long Term Wholesale Series Supplement. (i) The Long Term
Wholesale Series Supplement, executed and delivered by a duly
authorized officer of each CFC Party party thereto and (ii) a
certificate of a Responsible Officer of the Company that the
conditions to the effectiveness of the Long Term Wholesale Series
Supplement set forth therein have been satisfied.
(d) Corporate Proceedings of the Company. A copy of the
resolutions, in form and substance satisfactory to the Agent, of the
Board of Directors of each CFC Party authorizing the execution,
delivery and performance of this Long Term RPA and the other Related
Documents to which it is a party, certified by the Secretary or an
Assistant Secretary of such CFC Party, which certificate shall state
that the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(e) Corporate Documents. True and complete copies of the
articles or certificate of incorporation and by-laws of each CFC
Party, certified as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such CFC Party.
(f) No Violation. A certificate of a Responsible Officer of the
Company that the consummation of the transactions contemplated hereby
shall not contravene, violate or conflict with, as to any CFC Party,
any Requirement of Law or the certificate or articles of
incorporation, by-laws or other organizational or governing documents
of such Person.
(g) Consents, Licenses and Approvals. A certificate of a
Responsible Officer of the Company (i) attaching copies of all
consents, authorizations and filings referred to in subsection 3.2,
and (ii) stating that such consents, licenses and filings are in full
force and effect.
(h) Legal Opinions. The executed legal opinion of Allan L.
Ronquillo, Esq., general counsel of the Company, substantially in the
form of Exhibit D.
(i) Existing Long Term Standby RPA. Satisfactory evidence that
the Existing Long Term Standby RPA shall have been terminated pursuant
to an irrevocable notice of termination of commitments, that any
amounts owing thereunder by the Company (including, without
limitation, accrued unpaid commitment fees through the Effective Date)
shall have been (or shall upon the occurrence of the Effective Date
be) paid in full and that the "Aggregate Invested Amount" thereunder
as of the Effective Date shall be equal to zero. Without affecting
any terms of the Existing Long Term Standby RPA which expressly
survive the termination of the Existing Long Term Standby RPA, each
Bank party to the Existing Long Term Standby RPA hereby waives any
requirement of advance notice of such termination contained in the
Existing Long Term Standby RPA and hereby agrees that the Existing
Long Term Standby RPA and the commitments thereunder (subject to
receipt of any other required consents of any other Person) shall
terminate simultaneously with the satisfaction by the Company of the
conditions to effectiveness set forth in this subsection 4.1.
4.2 Notice of Effective Date. Upon satisfaction of the
conditions set forth in subsection 4.1, the Agent shall deliver to each CFC
Party and Bank a notice stating that such conditions have been satisfied
and setting forth the Effective Date.
4.3 Conditions to Each Purchase. The agreement of each Bank to
make any Purchase requested to be made by it on any date (including,
without limitation, its initial Purchase) is subject to the satisfaction of
the conditions precedent set forth in the Long Term Retail PSA, with
respect to Retail Purchases, and in the Long Term Wholesale Series
Supplement with respect to Wholesale Purchases and the following conditions
with respect to all Purchases:
(a) no Commitment Termination Event shall have occurred and
be continuing;
(b) the representations and warranties set forth in Section
3 shall be true and correct in all material respects on and as of
the related Purchase Date;
(c) neither the Company nor CCC shall be in default in the
payment of interest on any Indebtedness of, or assumed by, such
Person when due, which default shall have continued for a period
of 10 days, or in payment of the principal of any such evidence
of Indebtedness when due;
(d) no default shall have occurred and be continuing under
any instrument securing or providing for the issuance of
Indebtedness of the Company or CCC, which default shall have
continued unremedied for a period to permit acceleration of the
maturity of such Indebtedness;
(e) receipt by the Administrative Agent on the date of such
Purchase of a certificate of a Responsible Officer stating that the
conditions set forth in this Section 4.3 have been satisfied.
4.4 Conditions to Addition of Retail Seller. A special purpose
subsidiary shall become an additional Retail Seller on the date (with
respect to such Retail Seller, the "Retail Addition Date") that the Agent
shall have received a certificate of a Responsible Officer of the Servicer
stating that all conditions precedent to the addition of such Seller as a
party to the Long Term Retail PSA (including execution of a supplement
making such Person a party hereto) have been satisfied.
SECTION 5. COVENANTS
The Company hereby agrees that, so long as the Long Term
Commitments remain in effect, any Certificate remains outstanding or any
other amount is owing to any Bank or the Agent hereunder, the Company shall
and shall cause each of the other CFC Parties to:
5.1 Notices. Promptly give notice to the Agent and each Bank of
the occurrence of any Commitment Termination Event and any Default or Event
of Default under and as defined in the CFC Revolving Credit Agreement.
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred
to therein and stating what action, if any, the Company proposes to take
with respect thereto.
5.2 Merger. The Company and CCC will not merge or consolidate
with or into any other Person, 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, the Company shall be able to
fulfill the conditions set forth in subsection 4.3; and
(ii) CCC 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 of its
wholly-owned Subsidiaries (provided that a wholly-owned
Subsidiary of CFC shall be the continuing or surviving
corporation) and (C) with or into any other Person, if CCC shall
be the continuing or surviving corporation and shall continue to
be a Subsidiary of the Company and immediately after such merger
or consolidation, the Company shall be able to fulfill the
conditions set forth in subsection 4.3.
5.3 Ownership of Retail Sellers and Wholesale Seller. The
Company shall maintain ownership of all of the issued and outstanding
shares of each class of capital stock of each Retail Seller and the
Wholesale Seller.
5.4 Maintenance of Separate Existence. Each Seller hereby
agrees that, so long as the Long Term Commitments remain in effect, any
Certificate remains outstanding or any other amount is owing to any Bank or
the Agent hereunder, such Seller shall do all things necessary to maintain
its corporate existence separate and apart from CCC, the Company and other
Affiliates of the Seller, including, without limitation, (i) practicing and
adhering to corporate formalities, such as maintaining appropriate
corporate books and records; (ii) maintaining all of its deposit and other
bank accounts and all of its assets separate from those of any other
Person; (iii) maintaining all of its financial records separate and apart
from those of any other Person; (iv) maintaining its own separate telephone
number, stationery and business forms; (v) accounting for and managing all
of its liabilities separately from those of any of its Affiliates; (vi)
refraining from filing or otherwise initiating or supporting the filing of
a motion in any bankruptcy or other insolvency proceeding involving the
Seller, CCC, the Company, or any other Affiliate of Seller, to
substantively consolidate the Seller with CCC, the Company or any other
Affiliate of Seller; (vii) conducting transactions with its Affiliates only
on an arm's length basis; (viii) refraining from having its obligations
guaranteed by any of its Affiliates and (ix) conducting all of its business
(whether written or oral) solely in its own name.
SECTION 6. GUARANTEE
6.1 Guarantee. (a) The Company hereby unconditionally and
irrevocably covenants and agrees that it will cause CCC duly and punctually
to perform and observe all of the terms, conditions, covenants, agreements
and indemnities of CCC under this Long Term RPA and the Related Documents
strictly in accordance with the terms hereof and thereof and that if for
any reason whatsoever CCC shall fail to so perform and observe such terms,
conditions, covenants, agreements and indemnities, the Company will duly
and punctually perform and observe the same.
(b) The liabilities and obligations of the Company under this
subsection 6.1 shall be absolute and unconditional under all circumstances
and shall be performed by the Company regardless of (i) whether the Banks
shall have taken any steps to collect from CCC any of the amounts payable
by CCC to the Banks under this Long Term RPA or the Related Documents or
shall have otherwise exercised any of their rights or remedies under this
Long Term RPA against CCC, (ii) the validity, legality or enforceability of
this Long Term RPA or of any of the Related Documents, or the disaffirmance
of any thereof in any insolvency, bankruptcy or reorganization proceedings
relating to CCC, (iii) any law, regulation or decree now or hereafter in
effect which might in any manner affect any of the terms or provisions of
this Long Term RPA or any Related Document or any of the rights of the
Banks as against CCC or which might cause or permit to be invoked any
alteration in the time, amount, manner or payment or performance of this
Long Term RPA or any Related Document, (iv) the merger or consolidation of
CCC into or with any corporation or any sale or transfer by CCC of all or
any part of its property, or (v) any other circumstances whatsoever (with
or without a notice to or knowledge of the Company) which may or might in
any manner or to any extent vary the risk of the Company, or might
otherwise constitute a legal or equitable discharge of a surety or
guarantor; it being the purpose and intent of the Company that the
liabilities and obligations of the Company under this subsection 6.1 shall
be absolute and unconditional under any and all circumstances, and shall
not be discharged except by payment and performance as in this Long Term
RPA provided.
(c) Without in any way affecting or impairing the liabilities
and obligations of the Company under this subsection 6.1, the Banks may at
any time and from time to time in their discretion, without the consent of,
or notice to the Company, (i) extend or change the time, manner, place or
terms of payment of any or all of the amounts payable by CCC to the Banks
under this Long Term RPA or the Related Documents or amend, supplement,
waive, extend or otherwise modify any of the terms of this Long Term RPA or
the Related Documents or (ii) settle or compromise any of the amounts
payable by CCC to the Banks under this Long Term RPA or the Related
Documents or subordinate the same to the claims of others.
(d) The provisions of this subsection 6.1 shall continue to be
effective or be reinstated, as the case may be, if at any time payment of
any of the amounts payable by CCC to the Banks under this Long Term RPA or
the Related Documents is rescinded or must otherwise be restored or
returned by the Banks upon the insolvency, bankruptcy or reorganization of
CCC, or otherwise, all as though such payment had not been made. The
Company hereby waives (i) notice of the occurrence of any default
hereunder, (ii) any requirement of diligence or promptness on the part of
the Banks in making demand, commencing suit or exercising any other right
or remedy under this Long Term RPA or the Related Documents, or otherwise,
and (iii) any right to require the Banks to exercise any right or remedy
against CCC prior to enforcing any of its rights against the Company under
this subsection 6.1.
(e) The Company covenants and agrees that so long as any of the
amounts payable by CCC to the Banks under this Long Term RPA or any Related
Document remains unpaid, the Company will maintain ownership of not less
than 80% of the issued and outstanding shares of each class of capital
stock of CCC that is entitled to vote generally for the election of
directors; provided that nothing in this subsection 6.1 shall prevent the
merger or consolidation of the Company and CCC in accordance with
subsection 5.2 hereof.
SECTION 7. COMMITMENT TERMINATION EVENTS
If any of the following events shall occur and be continuing:
(a) (i) any Wholesale Non-Portfolio Early Amortization Event or
(ii) any Retail Non-Portfolio Termination Event shall occur; or any
CFC Party shall fail to pay any other amount payable hereunder, within
five days after any such other amount becomes due in accordance with
the terms hereof; or
(b) Any representation or warranty made by the Company herein or
in any other Related Document or which is contained in any
certificate, document or financial or other statement furnished at any
time under or in connection with this Long Term RPA shall prove to
have been incorrect in any material respect on or as of the date made;
or
(c) Any CFC Party shall default in the observance or performance
of any other agreement contained in this Long Term RPA (other than as
provided in paragraphs (a) through (b) of this Section), and such
default shall continue unremedied for a period of 30 days; or
(d) (i) The Company or any of the other CFC Parties 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 Subsidiaries shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced
against the Company or any of the other CFC Parties 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 the other CFC Parties 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 the other CFC Parties 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 the other CFC Parties shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due;
then, and in any such event, (A) if such event is a Commitment Termination
Event specified in clause (i) or (ii) of paragraph (d) above, automatically
the Long Term Commitments shall immediately terminate without notice of any
kind, which is hereby waived by the CFC Parties and (B) if such event is
any other Commitment Termination Event, so long as such Commitment
Termination Event shall be continuing, 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 Long Term Commitments to be
terminated forthwith, whereupon the Long Term Commitments shall immediately
terminate.
SECTION 8. THE AGENT AND ADMINISTRATIVE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chemical Bank as the Agent and as Administrative Agent of such
Bank under this Long Term RPA and the Related Documents, and each such Bank
irrevocably authorizes Chemical Bank, as the Agent and as Administrative
Agent for such Bank, to take such action on its behalf under the provisions
of this Long Term RPA and the Related Documents and to exercise such powers
and perform such duties as are expressly delegated to the Agent or the
Administrative Agent, as the case may be, by the terms of this Long Term
RPA and the Related Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Long Term RPA, neither the Agent nor the
Administrative Agent shall 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 Long Term RPA or any
Related Document or otherwise exist against the Agent or the Administrative
Agent.
8.2 Delegation of Duties. Each of the Agent and the
Administrative Agent may execute any of its duties under this Long Term RPA
and the Related Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. Neither the Agent nor the Administrative Agent shall be
responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Agent, the
Administrative Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for
any action lawfully taken or omitted to be taken by it or such Person under
or in connection with this Long Term RPA or any Related Document (except
for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Banks for any recitals,
statements, representations or warranties made by any CFC Party or any
officer thereof contained in this Long Term RPA or any Related Document or
in any certificate, report, statement or other document referred to or
provided for in, or received by the Agent or the Administrative Agent under
or in connection with, this Long Term RPA or any Related Document or for
the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Long Term RPA or any Related Document or for any
failure of any CFC Party to perform its obligations hereunder or
thereunder. Neither the Agent nor the Administrative Agent shall 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 Long Term RPA or any Related Document, or to inspect the properties,
books or records of any CFC Party.
8.4 Reliance by Agent and Administrative Agent. The Agent and
the Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, 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 any CFC Party),
independent accountants and other experts selected by the Agent or the
Administrative Agent. The Agent and the Administrative Agent shall be
fully justified in failing or refusing to take any action under this Long
Term RPA or any Related Document unless it shall first receive such advice
or concurrence of the Required Banks, or, if required under this Long Term
RPA, all 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 and the Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Long Term RPA and the Related Documents in accordance with a request
of the Required Banks, or, if required under this Long Term RPA, all 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
Certificates.
8.5 Notice of Default. Neither the Agent nor the Administrative
Agent shall be deemed to have knowledge or notice of the occurrence of any
Commitment Termination Event hereunder unless the Agent or the
Administrative Agent, as the case may be, has received notice from a Bank
or a CFC Party referring to this Long Term RPA, describing such Commitment
Termination Event and stating that such notice is a "notice of default".
In the event that the Agent or the Administrative Agent receives such a
notice, the Agent shall give notice thereof to the Banks. The Agent shall
take such action with respect to such Commitment Termination Event as shall
be reasonably directed by the Required Banks, or, if required under this
Long Term RPA, all 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 Commitment Termination Event as it shall deem advisable in
the best interests of the Banks.
8.6 Non-Reliance on Agent, Administrative Agent and Other Banks.
Each Bank expressly acknowledges that neither the Agent, the Administrative
Agent nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties
to it and that no act by the Agent or the Administrative Agent hereinafter
taken, including any review of the affairs of the CFC Parties, shall be
deemed to constitute any representation or warranty by the Agent or the
Administrative Agent to any Bank. Each Bank represents to the Agent and
the Administrative Agent that it has, independently and without reliance
upon the Agent, the Administrative Agent or any other Bank, 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 CFC Parties, the
Wholesale Master Trust, the Retail Pooled Property and the Wholesale Trust
Assets and made its own decision to make its Purchases hereunder and enter
into this Long Term RPA and the other Related Documents to which it is a
party. Each Bank also represents that it will, independently and without
reliance upon the Agent, the Administrative Agent or any other Bank, 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 Long Term RPA and the Related
Documents, 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 CFC Parties, the Wholesale Master
Trust, the Retail Pooled Property and the Wholesale Trust Assets. Except
for notices, reports and other documents expressly required to be furnished
to the Banks by the Agent or the Administrative Agent hereunder, neither
the Agent nor the Administrative Agent shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the CFC Parties, the Wholesale
Master Trust, the Retail Pooled Property and the Wholesale Trust Assets
which may come into the possession of the Agent or the Administrative Agent
or any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
8.7 Indemnification. The Banks agree to indemnify each of the
Agent and the Administrative Agent in their respective capacities as such
(to the extent not reimbursed by the CFC Parties and without limiting the
obligation of the CFC Parties 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 Long Term
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 Certificates) be imposed on, incurred by or asserted
against the Agent or the Administrative Agent, as the case may be, in any
way relating to or arising out of this Long Term RPA, any of the Related
Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Agent or the Administrative Agent, as the case may be, 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 solely from the Agent's or the Administrative
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Certificates 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 CFC Parties as though the Agent were not the
Agent hereunder and under the Related Documents. With respect to any
interest in Retail Pooled Property or Wholesale Trust Assets the Agent may
from time to time hold, the Agent shall have the same rights and powers
under this Long Term RPA and the Related Documents 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. If the Agent shall resign as Agent under this
Long Term RPA and the Related Documents, then the Required Banks shall
appoint from among the Banks a successor agent for the Banks, which
successor agent shall be approved by the Company, whereupon 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 Long Term RPA or any
holders of the Certificates. After any retiring Agent's resignation as
Agent, the provisions of this subsection shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under
this Long Term RPA and the Related Documents.
8.10 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Agent. If
the Administrative Agent shall resign as Administrative Agent under this
Long Term RPA and the Related Documents, then the Agent shall appoint a
successor administrative agent for the Banks, which successor agent shall
be approved by the Company, whereupon such successor agent shall succeed to
the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon its
appointment, and the former Administrative Agent's rights, powers and
duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any
of the parties to this Long Term RPA or any holders of the Certificates.
After any retiring Administrative Agent's resignation as Administrative
Agent, the provisions of this subsection shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative
Agent under this Long Term RPA and the Related Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Long Term RPA, any
Related Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. With the written consent of the Required Banks, the Agent and
the CFC Parties may, from time to time, enter into written amendments,
supplements or modifications hereto and to the Related Documents for the
purpose of adding any provisions to this Long Term RPA or the Related
Documents or changing in any manner the rights of the Banks or of the CFC
Parties hereunder or thereunder or waiving, on such terms and conditions as
the Agent may specify in such instrument, any of the requirements of this
Long Term RPA or the Related Documents or any Commitment Termination Event
and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (a) reduce the amount or extend
the maturity of any Certificate or any installment thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any fee
payable to any Bank hereunder, or change the amount of any Bank's Long Term
Commitment, in each case without the consent of each Bank directly affected
thereby, or (b) amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Required Banks or
waive any of the provisions of subsection 4.3 or change the definition of
Long Term Commitment Termination Date or reduce the percentages set forth
in "Required Subordinated Percentage" or "Required Reserve Percentage" in
the Long Term Wholesale Series Supplement or reduce the percentages set
forth in "Subordinated Percentage" or change the definition of "Minimum
Reserve Account Balance" or "Applicable Senior Percentage" in the Long Term
Retail PSA or amend Section 5.6 of the Long Term Retail PSA or amend
Sections 5.5 through 5.9 of the Long Term Wholesale Series Supplement, in
each case without the written consent of all the Banks, or (c) amend,
modify or waive any provision of Section 8 without the written consent of
the then Agent and Administrative Agent or (d) amend the Long Term
Wholesale Series Supplement without the satisfaction of the Rating Agency
Condition (as defined in the Wholesale PSA), if so required by the
Wholesale PSA. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall be binding
upon the CFC Parties, the Banks, the Agent, the Administrative Agent and
all future holders of the Certificates. In the case of any waiver, the CFC
Parties, the Banks, the Agent and the Administrative Agent shall be
restored to their former position and rights hereunder and under the
Related Documents, and any Commitment Termination Event waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to
any subsequent or other Commitment Termination Event, or impair any right
consequent thereon. Any amendment hereof or of the Related Documents can
be effected without the Administrative Agent being a party thereto.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing delivered by
certified or registered mail, by hand, by courier, or by telecopy,
telegraph or telex, and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, certified
or registered mail, or by courier, in the case of telecopy notice, when
received, or, in the case of telegraphic notice, when delivered to the
telegraph company, or, in the case of telex notice, when sent, answerback
received, addressed as follows in the case of the CFC Parties, the Agent
and the Administrative Agent, and as set forth on its Addendum, or to such
other address as may be hereafter notified by the respective parties hereto
and any future holders of the Certificates:
CFC: Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Telecopy: (810) 948-3801
CCC: Chrysler Credit Corporation
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Telecopy: (810) 948-3801
The Wholesale
Seller: U. S. Auto Receivables Company
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Telecopy: 810-948-3801
The initial American Auto Receivables Company
Retail Seller: 27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Telecopy: 810-948-3801
The Agent Chemical Bank
and Administrative 270 Park Avenue
Agent: New York, New York 10017
Attention: John S. Cannon
Telephone: 212-270-4872
Telecopy: 212-270-1469
provided that any notice, request or demand to or upon the Agent or the
Banks pursuant to subsection 2.3 shall not be effective until received.
9.3 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 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.
9.4 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 Long Term RPA.
9.5 Payment of Expenses and Taxes. The Company agrees:
(a) to pay or reimburse the Agent and the Administrative Agent
for all its out-of-pocket costs and expenses incurred in connection with
the development, preparation and execution of, and any amendment,
supplement or modification to, this Long Term RPA, the Related Documents
and any other documents prepared in connection herewith or therewith, and
the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the fees and disbursements of
Simpson Thacher & Bartlett, special counsel to the Agent and the
Administrative Agent,
(b) to pay or reimburse each Bank, the Administrative Agent and
the Agent for all its costs and expenses (other than legal fees and
disbursements) incurred in connection with the enforcement or preservation
of any rights under this Long Term RPA, the Related Documents and any such
other documents and the reasonable fees and disbursements of one firm of
special counsel to the Agent, the Administrative Agent and to the several
Banks,
(c) to pay, indemnify, and hold each Bank, the Administrative
Agent and the Agent harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes (excluding, with respect to any Bank,
net income and franchise taxes imposed with respect to net income), if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Long Term RPA,
the Related Documents and any such other documents, and
(d) to pay, indemnify, and hold each Bank, the Administrative
Agent and the Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements (other than legal fees and
disbursements) of any kind or nature whatsoever (and, with respect to any
proceeding or related proceedings, the reasonable fees and disbursements of
one firm of special counsel in connection with such proceeding(s)) with
respect to the execution, delivery, enforcement, performance and
administration of this Long Term RPA, the Related Documents and any such
other documents (all the foregoing, collectively, the "indemnified
liabilities"), provided, that the Company shall have no obligation
hereunder to the Agent, the Administrative Agent or any Bank with respect
to indemnified liabilities arising from (i) the gross negligence or willful
misconduct of the Agent, the Administrative Agent or any such Bank or (ii)
the ordinary course administration of this Long Term RPA, the Related
Documents or such other documents by the Agent, the Administrative Agent or
any such Bank.
(e) The agreements in this subsection 9.5 shall survive payment
of the Certificates and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Banks.
(a) This Long Term RPA shall be binding upon and inure to the benefit of
the CFC Parties, the Banks, the Agent, the Administrative Agent, all future
holders of the Certificates, and their respective successors and assigns,
except that no CFC Party may assign or transfer any of its rights or
obligations under this Long Term RPA without the prior written consent of
the Required Banks (other than in connection with the addition of an
additional Retail Seller pursuant to the terms hereof).
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to
a Commercial Bank ("Participants") participating interests in any
Certificate held by such Bank, the Long Term Commitment of such Bank or any
other interest of such Bank hereunder. In the event of any such sale by a
Bank of participating interests to a Participant, such Bank's obligations
under this Long Term RPA to the other parties to this Long Term RPA shall
remain unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any such
Certificate for all purposes under this Long Term RPA 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 Long Term
RPA. No Participant shall have any rights under any Certificate (the
Participant's rights against such Bank in respect of such participation to
be those set forth in the agreement executed by such Bank in favor of the
Participant thereto) and all amounts payable with respect to the
Certificates shall be determined as if such Bank had not sold such
participations provided that (i) the terms of any participation agreement
or certificate relating to any such participation shall prohibit any
subparticipations by such participant; (ii) any such participation
agreement or certificate shall permit the Bank granting such participations
the right to consent to waivers, amendments or supplements to this Long
Term RPA and the Related Documents without the consent of such participant
except in the case of (a) waivers of any Commitment Termination Event
described in Section 7(a), and (b) any amendment or modification reducing
the amount or extending the maturity of any Certificate or any installment
thereof, or reducing the rate or extending the time of payment of interest
thereon, or reducing any fee payable to such Bank hereunder, in each case
to the extent such waiver, amendment or supplement directly affects such
participant and (iii) a participating interest of at least $5,000,000 shall
be sold pursuant to any such participation (unless, at the Company's
discretion, a lesser amount is mutually agreed upon between the Company and
such Bank).
(c) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to
any Bank, and, with the consent of the Company and the Agent (which in each
case shall not be unreasonably withheld or delayed) to one or more
additional Commercial Banks ("Purchasing Banks") all or a portion of its
rights and obligations under this Long Term RPA, the Related Documents and
the Certificates, pursuant to an Assignment and Acceptance, executed by
such Purchasing Bank, such transferor Bank and the Agent (and, in the case
of a Purchasing Bank that is not then a Bank, by the Company), and
delivered to the Agent for its acceptance and recording in the Register,
provided that (i) prior to the termination of the Long Term Commitments
(whether on the Long Term Commitment Termination Date or otherwise), any
such sale shall include a proportionate share of each of such transferor
Bank's Long Term Commitment, interests in Retail Pooled Property and
interests in Wholesale Trust Assets and, after any such termination, any
such sale may be of any combination of interests in Retail Pooled Property
and interests in Wholesale Trusts Assets, (ii) in the event of an
assignment of less than all of such Bank's obligations, (x) the principal
amount of such Bank's Long Term Commitment so sold (or, if no Long Term
Commitment is outstanding, the principal amount of interests in Retail
Pooled Property and Wholesale Trust Assets so sold) shall be in an
aggregate amount of $6,000,000 or more and (y) after giving effect to any
such assignment, the transferor Bank and the Purchasing Bank (in each case
together with any Bank which is an affiliate of such transferor Bank or
such Purchasing Bank, respectively) shall each have obligations hereunder
and under the Related Documents aggregating not less than $6,000,000
(unless, in each case, at the Company's discretion, a lesser amount is
agreed upon between the Company and such transferor Bank or Purchasing
Bank, respectively), and (iii) no assignment hereunder shall be effective
unless and until the Agent shall be given written notice of the Clearing
Account of the Purchasing Bank; provided, further, however, that no consent
by the Company shall be required in the case of assignments to a Commercial
Bank controlled by, controlling or under common control with an assignor
Bank or pursuant to a merger or consolidation of such Bank with another
entity on a similar transaction involving such Bank. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Purchasing
Bank thereunder shall be a party hereto and the Related Documents and, to
the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder with a Long Term Commitment as set forth
therein, and (y) the transferor Bank thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its
obligations under this Long Term RPA (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of a transferor Bank's
rights and obligations under this Long Term RPA and the Related Documents,
such transferor Bank shall cease to be a party hereto). Such Assignment
and Acceptance shall be deemed to amend this Long Term RPA to the extent,
and only to the extent, necessary to reflect the addition of such
Purchasing Bank and the resulting adjustment of Commitment Percentages
arising from the purchase by such Purchasing Bank of all or a portion of
the rights and obligations of such transferor Bank under this Long Term RPA
and the Related Documents. On or prior to the effective date determined
pursuant to such Assignment and Acceptance, each Seller, at its own
expense, shall execute and deliver to the Agent in exchange for the
surrendered Retail Senior Certificate and Wholesale Senior Certificate a
new Retail Senior Certificate and Wholesale Senior Certificate issued in
the name of such Purchasing Bank pursuant to the Long Term Retail PSA and
the Long Term Wholesale Series Supplement and, if the transferor Bank has a
retained Long Term Commitment hereunder, new Retail Senior Certificate and
Wholesale Senior Certificate issued in the name of the transferor Bank.
(d) The Agent shall maintain at its address referred to in
subsection 9.2 a copy of each Assignment and Acceptance delivered to it and
a register (the "Register") for the recordation of the names, addresses and
Clearing Accounts of the Banks and the Long Term Commitment of, and
principal amount of the interests in Retail Pooled Property and Wholesale
Trust Assets sold to, each Bank from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the CFC
Parties, the Agent, the Administrative Agent and the Banks may treat each
Person whose name is recorded in the Register as the owner of the interests
in Retail Pooled Property and Wholesale Trust Assets recorded therein for
all purposes of this Long Term RPA. The Register shall be available for
inspection by the CFC Parties 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.
(e) Upon its receipt of an Assignment and Acceptance executed by
a transferor Bank and a Purchasing Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the Company and
the Agent), together with payment to the Agent of a registration and
processing fee of $2,500 (or such lesser amount as may be agreed to by the
Agent), the Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such
acceptance and recordation to the Banks and the Company.
(f) Each CFC Party authorizes each Bank to disclose to any
Participant or Purchasing Bank (each, a "Transferee") and any prospective
Transferee any and all financial information in such Bank's possession
concerning such CFC Party and its affiliates which has been delivered to
such Bank by or on behalf of such CFC Party pursuant to this Long Term RPA
or which has been delivered to such Bank by or on behalf of the Company in
connection with such Bank's credit evaluation of such CFC Party and its
affiliates prior to becoming a party to this Long Term RPA.
(g) If, pursuant to this subsection 9.6, any interest in this
Long Term RPA or any Certificate is transferred to any Transferee which is
organized under the laws of any jurisdiction other than the United States
or any State thereof, the transferor Bank shall cause such Transferee,
concurrently with the effectiveness of such transfer, (i) to represent to
the transferor Bank (for the benefit of the transferor Bank, the Agent and
the CFC Parties) that under applicable law and treaties no taxes will be
required to be withheld by the Agent, the CFC Parties or the transferor
Bank with respect to any payments to be made to such Transferee in respect
of the Certificates, (ii) to furnish to the transferor Bank (and, in the
case of any Purchasing Bank registered in the Register, the Agent and the
CFC Parties) either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such Transferee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder) and (iii) to agree (for the benefit of the
transferor Bank, the Agent and the CFC Parties) to provide the transferor
Bank (and, in the case of any Purchasing Bank registered in the Register,
the Agent and the CFC Parties) 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 Transferee, and to comply
from time to time with all applicable U.S. laws and regulations with regard
to such withholding tax exemption.
9.7 Clearing Accounts. (a) Each Bank irrevocably authorizes
the Agent and the Administrative Agent to cause such Bank's Clearing
Account to be debited as contemplated in subsection 2.3 and to cause to be
created an overdraft in such account if the balance in such Bank's Clearing
Account on a particular date is less than the amount of the Purchase to be
made by such Bank on such day. In addition each Bank irrevocably
authorizes the Agent and the Administrative Agent to cause such Bank's
Clearing Account to be credited, as contemplated in subsection 2.7(a), with
its ratable share of payments received by the Agent from the Sellers. The
Clearing Account of each Bank shall be maintained at its own expense and
free of charge to the Agent, the Administrative Agent 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 Purchases made pursuant hereto, and the Banks shall
thereafter fund each Purchase required to be made by them hereunder by
making available the amount thereof to the Agent for the account of the
Sellers at the office of the Agent set forth in subsection 9.2 in funds
immediately available to the Agent.
9.8 Adjustments; Set-off.
(a) If any Bank (a "benefitted Bank") shall at any time receive
any payment of all or part of its investments in Retail Pooled Property or
Wholesale Trust Assets, 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 Section 7(d), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Bank, if any, in respect of such other Bank's
investments in Retail Pooled Property or Wholesale Trust Assets, or
interest thereon, such benefitted Bank shall purchase for cash from the
other Banks such portion of each such other Bank's investments in Retail
Pooled Property or Wholesale Trust Assets, 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. Each CFC Party
agrees that each Bank so purchasing a portion of another Bank's investments
in Retail Pooled Property or Wholesale Trust Assets 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.
(b) In addition to any rights and remedies of the Banks provided
by law, each Bank shall have the right, without prior notice to any CFC
Party, any such notice being expressly waived by each CFC Party to the
extent permitted by applicable law, upon any amount becoming due and
payable by such CFC Party hereunder or under the Related Documents (whether
at the stated maturity, by acceleration or otherwise) to set off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by such Bank or any branch or agency thereof to
or for the credit or the account of such CFC Party, provided, however, that
no Bank which maintains any bank account for the benefit of the Wholesale
Master Trust or the Wholesale Trustee shall exercise any right of set-off
or counterclaim or similar right with respect to amounts on deposit in such
bank account. Each Bank agrees promptly to notify the Company and the
Agent 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.
9.9 Counterparts. This Long Term RPA may be executed by one or
more of the parties to this Long Term RPA 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
Long Term RPA signed by all the parties shall be lodged with the Company
and the Agent.
9.10 Severability. Any provision of this Long Term RPA which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
9.11 Integration. This Long Term RPA represents the agreement
of the CFC Parties, the Agent, the Administrative Agent and the Banks with
respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Agent or any Bank
relative to subject matter hereof not expressly set forth or referred to
herein or in the Related Documents.
9.12 GOVERNING LAW. THIS LONG TERM RPA AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS LONG TERM RPA SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
9.13 Submission To Jurisdiction; Waivers. Each CFC Party hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Long Term RPA and the Related Documents to
which it is a party, or for recognition and enforcement of any
judgement 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 such Person at its address set forth in subsection 9.2 or
at such other address of which the Agent shall have been notified
pursuant thereto;
(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; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
9.14 Acknowledgements. Each CFC Party hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Long Term RPA and the Related Documents;
(b) neither the Agent nor any Bank has any fiduciary
relationship to such Person, and the relationship between Agent and
Banks, on one hand, and such Person, on the other hand, is solely that
of debtor and creditor; and
(c) no joint venture exists among the Banks or among the CFC
Parties and the Banks.
IN WITNESS WHEREOF, the parties hereto have caused this Long Term
RPA to be duly executed and delivered in New York, New York by their proper
and duly authorized officers as of the day and year first above written.
CHRYSLER FINANCIAL CORPORATION
By /s/ D.M. Cantwell
Title: Vice President - Corporate
Finance and Development
CHRYSLER CREDIT CORPORATION
By /s/ D.A. Robison
Title: Vice President
and Treasurer
U.S. AUTO RECEIVABLES COMPANY
By /s/ John J. Shea
Title: Assistant Treasurer
AMERICAN AUTO RECEIVABLES COMPANY
By /s/ John J. Shea
Title: Assistant Treasurer
CHEMICAL BANK,
as Agent and as Administrative Agent
By /s/ Karen Sager
Title: Vice President
ANNEX 1
to Long Term RPA
CERTAIN DEFINITIONS
The following terms shall have the following meanings:
"ACH": an Automated Clearing House.
"Accrual Period": (i) with respect to any Retail Distribution
Date, the period from and including the preceding Retail Distribution Date
(or, with respect to the initial Retail Distribution Date, the Effective
Date) to but excluding such Retail Distribution Date, or (ii) with respect
to any Wholesale Distribution Date, the period from and including the
preceding Wholesale Distribution Date (or, with respect to the initial
Wholesale Distribution Date, the Effective Date) to but excluding such
Wholesale Distribution Date.
"Active Retail Seller": the Retail Seller which became party to
the Long Term RPA last in time.
"Addendum": an instrument, substantially in the form of
Exhibit A to the Long Term RPA, by which a Bank becomes a party to the Long
Term RPA, the Long Term Retail PSA and the Long Term Wholesale Series
Supplement.
"Additional Seller Supplement": an instrument, substantially in
the form of Exhibit G to the Long Term Retail PSA, by which a Retail Seller
becomes a party to the Long Term RPA and the Long Term Retail PSA.
"Administrative Agent": Chemical Bank, a New York banking
corporation, in its capacity as administrative agent for the Banks under
the Long Term RPA, or any successor.
"Affiliate": of any corporation, shall mean any Person that,
directly or indirectly, controls or is controlled by or is under common
control with such corporation. 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.
"Agent": Chemical Bank, a New York banking corporation, in its
capacity as agent for the Banks under the Long Term RPA, or any successor.
"Aggregate Invested Amount": at any time of determination, the
sum of the Retail Senior Amount at such time and the Wholesale Aggregate
Senior Invested Amount at such time.
"Applicable Invested Amount": with respect to any Reference
Bank, (i) with respect to a determination of the LIBO Rate for purposes of
the Long Term Retail PSA, such Reference Bank's Commitment Percentage of
the Retail Senior Amount and (ii) with respect to a determination of the
LIBO Rate for purposes of the Long Term Wholesale Series Supplement, the
"Bank Invested Amount" of such Reference Bank under and as defined in the
Long Term Wholesale Series Supplement.
"Assessment Rate": 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 the Agent to the Federal Deposit
Insurance Corporation (or any successor) for insurance by such Corporation
(or any successor) of time deposits made in dollars at the Agent's domestic
offices.
"Assignment and Acceptance": an instrument, substantially in the
form of Exhibit E to the Long Term RPA, pursuant to which a Purchasing Bank
acquires all or a portion of another Bank's Long Term Commitment and
Certificates.
"Banks": as defined in the preamble to the Long Term RPA.
"Base Rate": 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. "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.
"Business Day": 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 Purchase with
respect to which the LIBO Rate is determined based upon the Telerate screen
in accordance with the definition of LIBO 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.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation.
"CARCO": Chrysler Auto Receivables Company, a Delaware
corporation.
"Certificates": collectively, the Retail Senior Certificates and
the Wholesale Senior Certificates.
"CCC": Chrysler Credit Corporation, a Delaware corporation or
any successor.
"CFC": Chrysler Financial Corporation, a Michigan corporation.
"CFC Party": each of CFC, CCC, the Retail Sellers and the
Wholesale Seller.
"CFC Revolving Credit Agreement": the Revolving Credit
Agreement, dated as of May 23, 1994, among CFC, the banks parties thereto,
the Co-Agents parties thereto, Chemical Securities Inc., as arranger, and
Chemical Bank, as agent, as amended, supplemented, modified, renewed or
replaced from time to time.
"Chemical": Chemical Bank, a New York banking corporation or any
successor.
"Chrysler": Chrysler Corporation, a Delaware 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.
"Commercial Bank": shall mean any Person (a) licensed to engage
in commercial banking business and (b) which on the date it becomes a Bank
hereunder (i) is entitled to receive payments under this Agreement and the
Related Documents without deduction or withholding of any United States
federal income taxes and (ii) is entitled to an exemption from, or is not
subject to, United States backup withholding tax.
"Commitment Percentage": as to any Bank at any time, the
percentage of the Long Term Aggregate Commitment Amount then constituted by
such Bank's Long Term Commitment.
"Commitment Termination Event": any of the events specified in
Section 7 of the Long Term RPA, provided that any requirement for the
giving of notice, the lapse of time, or both, or any other condition, has
been satisfied.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default Rate": the Base Rate plus 2%.
"Distribution Dates": the collective reference to the Retail
Distribution Date and the Wholesale Distribution Date.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Effective Date": as defined in subsection 4.1 of the Long Term RPA.
"Effective Federal Funds Rate": 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.
"Eurodollar Margin": if Utilization is less than or equal to
33-1/3%, .4375 of 1% per annum, or if Utilization is greater than 33-1/3%,
.5625 of 1% per annum.
"Existing Standby Long Term RPA": the Amended and Restated
Standby Receivables Purchase Agreement, dated as of September 15, 1993,
among CFC, CCC, the Wholesale Seller, the Retail Sellers, the banks party
thereto, Chemical Bank, as agent, and Chemical Bank Agency Services
Corporation, as administrative agent, as in effect immediately prior to the
Effective Date of the Long Term RPA.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": 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.
"Indebtedness": of any Person at any date, (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices) or which is evidenced by a note, bond, debenture or similar
instrument, (b) all 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) all obligations of such Person in respect of
acceptances issued or created for the account of such Person.
"LIBO Rate": with respect to any Accrual Period, the rate per
annum determined on the basis of the rate for deposits in Dollars for a
period equal to such Accrual Period commencing on the first day of such
Accrual 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 Accrual
Period. In the event that such rate does not appear on Page 3750 of the
Telerate Service (or otherwise on such service), the "LIBO 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 CFC or,
in the absence of such agreement, the "LIBO Rate" shall instead be the rate
per annum equal to the average (rounded upwards, 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 such Accrual Period, in the
interbank eurodollar market where the relevant eurodollar and foreign
currency and exchange operations are then being conducted for delivery on
the first day of such Accrual Period for the number of days comprised
therein and in an amount equal to the amount of the Applicable Invested
Amount of such Reference Bank to be outstanding during such Accrual Period.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or other security
agreement of any kind or nature whatsoever (including, without limitation,
any conditional sale or other title retention agreement, and any financing
lease having substantially the same economic effect as any of the
foregoing).
"Long Term Aggregate Commitment Amount": $1,000,000,000, which
amount may be changed from time to time pursuant to subsection 2.5 or 2.9
of the Long Term RPA.
"Long Term Commitment": as to any Bank, the obligation of such
Bank to purchase undivided participating interests in Retail Pooled
Property and Wholesale Trust Assets hereunder in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Bank's name on Schedule I to the Long Term RPA in the column
designated "Long Term Commitments".
"Long Term Commitment Period": the period from and including the
Effective Date to but not including the Long Term Commitment Termination
Date or such earlier date on which the Long Term Commitments shall
terminate as provided in the Long Term RPA.
"Long Term Commitment Termination Date": May 22, 1998, or if
such day is not a Business Day, the next preceding Business Day.
"Long Term Retail PSA": the Long Term Participation and
Servicing Agreement, dated as of May 23, 1994, among the Retail Sellers,
CCC, the Banks, the Agent and the Administrative Agent, substantially in
the form of Exhibit B to the Long Term RPA, as the same may be amended,
supplemented or otherwise modified from time to time.
"Long Term RPA": the Long Term Receivables Purchase Agreement,
dated as of May 23, 1994, among CFC, CCC, the Wholesale Seller, the Retail
Sellers, the Banks, the Agent and the Administrative Agent, as the same may
be amended, supplemented or otherwise modified from time to time.
"Long Term Wholesale Series Supplement": the Long Term Bank
Supplement to the Wholesale PSA, dated as of May 23, 1994, among the
Wholesale Seller, the Wholesale Trustee, CCC, the Banks, the Agent and the
Administrative Agent, substantially in the form of Exhibit C to the Long
Term RPA, as the same may be amended, supplemented or otherwise modified
from time to time.
"Material Adverse Effect": a material adverse effect on (a) the
ability of any CFC Party to perform its obligations under the Long Term RPA
or the Related Documents or (b) the validity or enforceability of the Long
Term RPA or any of the Related Documents.
"Participant": as defined in subsection 9.6(b) of the Long Term RPA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Purchase Date": any Business Day specified in a notice pursuant
to subsection 2.3 of the Long Term RPA as a date on which a Seller requests
the Banks to make a Purchase under the Long Term RPA.
"Purchases": the collective reference to Retail Purchases and
Wholesale Purchases.
"Purchasing Banks": as defined in subsection 9.6(c) of the Long
Term RPA.
"Reference Banks": shall mean Chemical, Swiss Bank Corporation,
New York Branch, NBD Bank, N.A. and The Royal Bank of Canada.
"Related Documents": the Long Term Retail PSA, the Long Term
Wholesale Series Supplement, the Retail Certificates, the Wholesale
Certificates, the Retail Purchase Agreement, the Wholesale PSA, the
Receivables Purchase Agreement, referred to in the Wholesale PSA, each
"Assignment" (as defined in the Long Term Retail PSA), and each "Interest
Rate Cap Agreement" (as defined in the Long Term Retail PSA).
"Required Banks": at any time, Banks the Commitment Percentages
of which aggregate at least 51% or, if the Long Term Commitments have
terminated, Banks holding Certificates representing at least 51% of the
Aggregate Invested Amount.
"Requirement of Law": as to any Person, 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": 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.
"Retail Addition Date": as defined in subsection 4.4 of the Long
Term RPA.
"Retail Certificates": the Retail Senior Certificates and the
"Subordinated Certificate" issued pursuant to the Long Term Retail PSA.
"Retail Distribution Date": "Distribution Date", as defined in
the Long Term Retail PSA.
"Retail Non-Portfolio Termination Event": any of the following
events:
(a) failure on the part of any Retail Seller or CFC,
as applicable, to make any payment or deposit required by the
terms of the Long Term Retail PSA or any Retail Purchase
Agreement within two Business Days after any such payment or
deposit is required to be made in accordance with the terms thereof;
(b) any Retail Seller shall default in the observance
or performance of any agreement contained in Section 7.1(b)(i) of
the Long Term Retail PSA;
(c) any Retail Seller or CFC shall default in the
observance or performance of any other agreement, covenant or
term contained in the Long Term Retail PSA or any Retail Purchase
Agreement, and such default shall continue unremedied for a
period of 30 days after receipt by the Active Retail Seller of
notice of such default from the Agent;
(d) any representation or warranty made by CFC in any
Retail Purchase Agreement or any Retail Seller in the Long Term
Retail PSA shall prove to have been incorrect in any material
respect on or as of the date made or deemed made, and shall
continue to be incorrect in any material respect for a period of
60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given by the
Agent to the Active Retail Seller; provided, however, a Retail
Non-Portfolio Termination Event shall not be deemed to have
occurred if such representation or warranty relates to a
"Contract" conveyed under the Long Term Retail PSA and the Retail
Sellers have repurchased such Contract during such period in
accordance with the provisions of the Long Term Retail PSA; or
(e) a Retail Service Default.
"Retail Pooled Property": "Pooled Property", as defined in the
Long Term Retail PSA.
"Retail Portfolio Termination Event": any of the following events:
(a) the Retail Senior Amount is greater than zero and
the amount on deposit in the "Reserve Account" maintained under
and pursuant to the Long Term Retail PSA equals zero;
(b) on any Retail Distribution Date, the percentage
equivalent of the decimal obtained by dividing (i) Realized
Losses with respect to all retail automobile installment sale
contracts of CFC and its subsidiaries (including contracts sold
subject to limited recourse provisions) during the three calendar
months ended prior to such Retail Distribution Date by (ii) total
collections plus Realized Losses, in each case with respect to
all such contracts during such three month period, exceeds 4.5%;
or
(c) any "Event of Default" under and as defined in the
CFC Revolving Credit Agreement has occurred and is continuing.
"Retail Purchase": as defined in subsection 2.1 of the Long Term
RPA.
"Retail Purchase Agreement": a "Purchase Agreement", as defined
in the Long Term Retail PSA.
"Retail Seller": as defined in the preamble to the Long Term RPA.
"Retail Senior Amount": the "Senior Amount", as defined in the
Long Term Retail PSA.
"Retail Senior Certificates": "Senior Certificates", as defined
in the Long Term Retail PSA.
"Retail Servicer": CCC, in its capacity as servicer under the
Long Term Retail PSA and any successor as servicer thereunder.
"Retail Service Default": a "Service Default", as defined in the
Long Term Retail PSA.
"Seller": each of the Wholesale Seller and the Retail Sellers.
"Servicer": shall have the meaning assigned in the Long Term
Retail PSA.
"Statutory Reserves": 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 the Agent 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.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned.
"Transferee": as defined in subsection 9.6(f) of the Long Term RPA.
"Utilization": as of the last day of any Accrual Period, the
percentage equivalent of a fraction (i) the numerator of which is the
average daily Long Term Aggregate Invested Amount during such Accrual
Period and (ii) the denominator of which is the average daily Long Term
Aggregate Commitment Amount during such Accrual Period. If for any reason
there is any Long Term Aggregate Invested Amount after the termination of
the Long Term Commitments, the Utilization for each day on or after the
date of such termination shall be deemed to be greater than 33-1/3% (or, in
the case of any such termination occurring on the Long Term Commitment
Termination Date, the actual Utilization on such date immediately prior to
giving effect to such termination).
"Wholesale Aggregate Senior Invested Amount": the "Aggregate
Bank Invested Amount", as defined in the Long Term Wholesale Series
Supplement.
"Wholesale Certificates": the Wholesale Senior Certificates
issued pursuant to the Long Term Wholesale Series Supplement.
"Wholesale Distribution Date": a "Distribution Date", as defined
in the Long Term Wholesale Series Supplement.
"Wholesale Early Amortization Event": an "Early Amortization
Event", as defined in the Long Term Wholesale Series Supplement.
"Wholesale Master Trust": CARCO Auto Loan Master Trust,
established pursuant to the Wholesale PSA.
"Wholesale Non-Portfolio Early Amortization Event": a Wholesale
Early Amortization Event of the type described in Section 9.01 of the
Wholesale PSA or clause (c) or (f) of Section 7.1 of the Long Term
Wholesale Series Supplement.
"Wholesale Portfolio Early Amortization Event": a Wholesale
Early Amortization Event other than a Wholesale Non-Portfolio Early
Amortization Event.
"Wholesale PSA": the Pooling and Servicing Agreement, dated as
of May 31, 1991, as assigned by CARCO to the Wholesale Seller on August 8,
1991, among the Wholesale Seller, CCC, as Servicer, and the Wholesale
Trustee, as the same may be amended, supplemented or otherwise modified
from time to time.
"Wholesale Purchase": as defined in subsection 2.1 of the Long
Term RPA.
"Wholesale Seller": as defined in the preamble to the Long Term
RPA.
"Wholesale Senior Certificate Sublimit": the lesser of (a)
66-2/3% of the Long Term Aggregate Commitment Amount and (b) $666,666,667.
"Wholesale Senior Certificates": the "Bank Series Certificates",
as defined in the Long Term Wholesale Series Supplement.
"Wholesale Servicer": CCC, in its capacity as servicer under the
Wholesale PSA, and any successor as servicer thereunder.
"Wholesale Trust Assets": "Trust Assets", as defined in the
Wholesale PSA.
"Wholesale Trustee": Manufacturers and Traders Trust Company and
its successors as Trustee under the Wholesale PSA.