CHRYSLER FIRST BUSINESS CREDIT CORPORATION
ASSET PURCHASE AGREEMENT
by and between
CHRYSLER FIRST BUSINESS CREDIT CORPORATION
and
BERKELEY FEDERAL BANK & TRUST F.S.B.
Dated as of August 30, 1996
TABLE OF CONTENTS
PAGE
ARTICLE I CERTAIN DEFINITIONS; INTERPRETATION...................... 1
1.1 Definitions....................................... 1
1.2 Interpretation.................................... 5
ARTICLE II PURCHASE AND SALE........................................ 5
2.1 Purchase and Sale................................. 5
2.2 Certain Transferred Assets........................ 5
2.3 Assumed Liabilities............................... 6
2.4 Certain Liabilities............................... 6
2.5 Closing........................................... 6
2.6 Relation with Other Asset Purchase Agreement...... 7
ARTICLE III PAYMENT OF PURCHASE PRICE................................ 8
3.1 Estimated Net Credit.............................. 8
3.2 Determination of Net Credit; Dispute Resolution... 8
(a) Review by the Purchaser.................... 8
(b) Resolution of Disagreements................ 8
3.3 Post-Closing Payment.............................. 9
(a) Final Settlement........................... 9
(b) Method of Payment.......................... 9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLER............. 9
4.1 Organization and Existence........................ 9
4.2 Authority and Approval; Binding Effect............ 9
4.3 No Conflict....................................... 9
4.4 No Conflict with Contracts........................10
4.5 Loan Assets.......................................10
4.6 REO Assets........................................11
4.7 Amounts on Deposit................................11
4.8 Litigation........................................11
4.9 Permits and Other Operating Rights;
Compliance with Laws..............................11
4.10 Environmental Matters.............................12
4.11 Operations Since Cut-Off Date.....................12
4.12 Brokers...........................................12
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.......... 12
5.1 Organization and Existence........................ 12
5.2 Authority and Approval; Binding Effect............ 12
5.3 No Conflict....................................... 13
5.4 Funds Available................................... 13
5.5 Litigation........................................ 13
5.6 Brokers........................................... 13
ARTICLE VI COVENANTS OF THE SELLER.................................. 13
6.1 Servicing of Transferred Assets................... 13
6.2 Access............................................ 14
6.3 Consents.......................................... 14
6.4 Reasonable Efforts................................ 14
6.5 Inconsistent Activities........................... 14
ARTICLE VII COVENANTS OF THE PURCHASER............................... 14
7.1 Reasonable Efforts................................ 14
7.2 Access............................................ 14
7.3 Confidentiality................................... 15
7.4 Legal Claims...................................... 15
7.5 Certain Notifications............................. 15
7.6 Information Reporting............................. 15
ARTICLE VIII CONDITIONS TO CLOSING.................................... 15
8.1 Condition to the Obligations of the Purchaser..... 15
8.2 Conditions to the Obligations of the Seller....... 16
(a) Compliance................................. 16
(b) Closing Under Other Asset
Purchase Agreement ........................ 16
ARTICLE IX TERMINATION.............................................. 16
9.1 Grounds for Termination........................... 16
9.2 Effect of Termination............................. 16
ARTICLE X EXTENT AND SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS; INDEMNIFICATION................ 17
10.1 Survival; Remedy for Breach....................... 17
10.2 Indemnification by the Seller..................... 18
10.3 Indemnification by the Purchaser.................. 18
10.4 Procedures Governing Indemnification.............. 19
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ARTICLE XI MISCELLANEOUS............................................ 20
11.1 Disclosure Schedule............................... 20
11.2 Notices........................................... 20
11.3 Books and Records; Additional Deliveries.......... 21
11.4 Expenses.......................................... 21
11.5 Bulk Sales........................................ 21
11.6 Successors and Assigns............................ 21
11.7 No Third Party Beneficiaries...................... 22
11.8 Entire Agreement; Amendment....................... 22
11.9 Limitation on Warranties.......................... 22
11.10 Public Statements................................. 22
11.11 Severability...................................... 23
11.12 Counterparts...................................... 23
11.13 Necessary and Desirable Actions................... 23
11.14 Governing Law..................................... 23
11.15 Forum Selection and Consent to Jurisdiction....... 23
11.16 Waiver of Jury Trial.............................. 23
SCHEDULES
Schedule A -- Loan Assets Schedule
Schedule B -- REO Assets Schedule
Schedule C -- Escrow Balances Schedule
Schedule D -- Disclosure Schedule
Schedule E -- Additional Servicing Procedures Applied
After Date of Agreement
EXHIBITS
Exhibit 1 -- Bill of Sale and Assignment
Exhibit 2 -- Chrysler Financial Guaranty
Exhibit 3 -- Instrument of Assumption
Exhibit 4 -- Power of Attorney
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of August 30, 1996, by and
between CHRYSLER FIRST BUSINESS CREDIT CORPORATION, a Delaware corporation
(the "Seller"), and BERKELEY FEDERAL BANK & TRUST FSB, a federal savings bank
(the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Purchaser desires to purchase and take assignment of the
Designated Transferred Assets, and the Seller desires to sell and assign the
Designated Transferred Assets to the Purchaser, upon the terms and subject to
the conditions hereinafter set forth; and
WHEREAS, on the date hereof, the Seller, as the seller, and BlackRock
Capital Finance L.P., a Delaware limited partnership ("BlackRock"), as the
purchaser, have entered into an asset purchase agreement relating to the
purchase and sale of the Remaining Transferred Assets (the "BlackRock Asset
Purchase Agreement").
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS; INTERPRETATION
1.1 Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlled by, controlling or under common control with
such Person.
"Agreement" means this Asset Purchase Agreement, including the
Schedules and Exhibits attached hereto, and any restatement hereof and any
supplement, amendment or modification hereto.
"Allocated Percentage" of any amount referred to in this Agreement
means the percentage of such amount as may be specified by the Purchaser not
less than two business days before such amount is to be paid (in the case of
the Purchase Price) or two business days before the Seller is required
hereunder to deliver to the Purchaser a calculation based on such percentage
(in any other case) hereunder and, failing such specification, means 50%,
provided that the Allocated Percentage and the Corresponding Allocated
Percentage shall in any event equal 100%. The "Allocated Percentage"
designated by the Purchaser for one amount referred to in this Agreement may
be different from that applicable to a different amount referred to in this
Agreement.
"Assumed Liabilities" is defined in Section 2.3.
"Bill of Sale and Assignment" means the Bill of Sale and Assignment to
be made by the Seller in favor of the Purchaser at the Closing and
substantially in the form of Exhibit 1.
"BlackRock" and "BlackRock Asset Purchase Agreement" are defined in
the Recitals.
"Chrysler Financial" means Chrysler Financial Corporation, a Michigan
corporation.
"Chrysler Financial Guaranty" means the guaranty to be made by
Chrysler Financial in favor of the Purchaser at the Closing and substantially
in the form of Exhibit 2.
"Closing" and "Closing Date" are defined in Section 2.5.
"Confidentiality Agreement" is defined in Section 7.3.
"Contract" means any lease, sales order, purchase order, loan
agreement, security agreement, pledge agreement, license agreement, indenture,
mortgage, note, bond, instrument or other contract or agreement.
"Corresponding", when used with a term defined herein, means such term
as defined in the BlackRock Asset Purchase Agreement, and "Corresponding
Provision" when used with respect to a provision of this Agreement, means the
substantially equivalent provision of the BlackRock Asset Purchase Agreement.
"Cut-Off Date" means the close of business on May 31, 1996.
"Disclosure Schedule" means Schedule D to this Agreement.
"Due Diligence Information" means the information contained in the
loan files, legal files, reports and other records (including computer
records) which were made available for review by the Purchaser prior to the
date of this Agreement. "Due Diligence Information" includes Schedules A, B
and C and, to the extent that information set forth therein (and represented
and warranted to by the Seller pursuant to Article IV) shall be inconsistent
with other Due Diligence Information, the information set forth in Schedule A,
B or C, as applicable, shall control.
"Environmental Law" means any statute, rule or regulation, as in
existence on the Cut-Off Date, relating to environmental protection or the
use, generation, manufacture, transportation or other handling of any
substance, chemical, waste or other material which is listed, defined or
otherwise identified in such statute as hazardous, toxic or dangerous.
"Estimated Net Credit" is defined in Section 3.1.
"Indemnifiable Loss" means any and all damages, losses, liabilities,
fines, penalties, amounts paid in settlement (in accordance with the terms
hereof), costs and expenses (including reasonable expenses of investigation
and reasonable attorneys' fees) relating directly to any matter for which
indemnification under this Agreement is expressly available.
"Indemnified Person" and "Indemnifying Person" are defined in Section
10.4(a).
"Independent Accounting Firm" is defined in Section 3.2(b).
"Instrument of Assumption" means the Instrument of Assumption to be
made by the Purchaser in favor of the Seller at the Closing and substantially
in the form of Exhibit 3.
"Letter Agreement" means that certain letter agreement dated as of
August 1, 1996 by and between the Purchaser and the Seller.
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"Lien" means any lien, pledge, charge, security interest or other
encumbrance of any nature.
"Loan Assets" means the loans listed on Schedule A comprising, as
applicable, the promissory notes, mortgages, deeds of trust, guaranties,
assignments of leases and rents, security agreements and similar Contracts
related thereto, including Contracts in respect of New Extensions entered into
by the Seller during the Servicing Period in accordance with Section 6.1.
References to the "Designated Loan Assets" are to the Loan Assets designated
in writing by the Purchaser on or before the Closing in writing, certain
rights under which are being transferred under this Agreement, and references
to the "Remaining Loan Assets" are to the Loan Assets other than the
Designated Loan Assets, certain rights under which will be transferred
pursuant to the BlackRock Asset Purchase Agreement.
"Net Credit" means an amount equal to: (a) the Servicing Period Cash
Flow, less (b) the sum of (i) Servicing Expenses paid by the Seller during the
Servicing Period, plus (ii) the amount of New Extensions, plus (iii) the
Servicing Retainer.
"New Extensions" means the Allocated Percentage of the amount of
additional extensions of credit in respect of the Loan Assets during the
Servicing Period.
"Obligor" means a party to, or a Person otherwise obligated under, any
Loan Asset, whether as borrower, guarantor or otherwise (excluding the
Seller).
"Permitted Liens" means: (i) rights and claims of tenants or other
parties in possession; (ii) easements, encroachments, rights of way and
similar imperfections of title which do not materially affect the
marketability of the real property subject thereto; (iii) restrictions arising
under condemnation, eminent domain, zoning, building, use, occupancy, or other
laws; and (iv) Liens for taxes and other charges and assessments not yet due
and payable.
"Person" means any individual, sole proprietorship, firm, corporation,
partnership, trust, unincorporated association or other entity.
"Power of Attorney" means the Irrevocable Limited Power of Attorney to
be granted by the Seller to the Purchaser at the Closing and substantially in
the form of Exhibit 4.
"Purchase Price" means the Allocated Percentage of $248,478,108.
"Purchaser" is defined in the Preamble, and includes any successor and
permitted assignee of the Purchaser.
"Related Agreement" means any of the following: the Bill of Sale and
Assignment, the Instrument of Assumption, the Power of Attorney and any other
Transfer Instruments. References in this Agreement to a Person's Related
Agreements shall mean the Related Agreements to which such Person is, or is
purported to be, a party.
"REO Assets" means the real property, including all improvements
thereon: (i) listed on Schedule B, and (ii) of the Seller in respect of the
loans described on Schedule A, in cases where the Seller has taken title to
such real property on or prior to the Cut-Off Date but where additional
collateral remains. References to the "Designated REO Assets" are to the REO
Assets designated by the Purchaser in writing on or before the Closing,
certain rights to which are being transferred under this Agreement, and
references to the "Remaining REO Assets" are to the REO Assets other than the
Designated REO Assets, certain rights to which are being transferred pursuant
to the BlackRock Asset Purchase Agreement.
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"Responsible Party" means either the Purchaser or the Seller, if such
party: (i) does not consummate the transactions contemplated in Article II on
or before September 30, 1996 for any reason other than the non-satisfaction of
the condition(s) to its obligation to consummate such transactions described
in Section 8.1 or 8.2, as applicable; or (ii) has not, on or before September
30, 1996, satisfied the condition to the obligation of the other party to
consummate such transactions described in Section 8.2(a) or 8.1 as applicable.
"Seller" is defined in the Preamble.
"Servicing Expenses" means the Allocated Percentage of the ordinary
course direct out of pocket expenses incurred by the Seller on account of or
with respect to the servicing of the Transferred Assets, consisting of
expenses of repairs and improvements thereon, taxes, closing costs (including
customary sales commissions), insurance, operating costs associated with the
REO Assets, appraisals, environmental reports and legal fees.
"Servicing Period" means the period beginning on June 1, 1996 and
ending on the Closing Date.
"Servicing Period Cash Flow" means the Allocated Percentage of an
amount equal to all payments received by the Seller during the Servicing
Period on account of or with respect to the Transferred Assets, including
payments of interest and principal, insurance proceeds, condemnation proceeds,
liquidation proceeds or other recoveries.
"Servicing Retainer" means the Allocated Percentage of an amount equal
to $61,800 per month for each calendar month of the Servicing Period (prorated
for any partial month), provided that if the Closing shall not have occurred
by August 31, 1996, the Servicing Retainer shall be increased by the Allocated
Percentage of $1,667,000 per month (prorated for any partial month) for the
period commencing on September 1, 1996 and ending on the date of the Closing,
and provided further that such increase will not take effect if the Closing
shall be delayed beyond August 31, 1996 because the Seller shall have: (i)
refused to consummate the transactions described in Section 2.5 by such date
although the conditions to its obligation to consummate such transactions set
forth in Section 8.2 have been satisfied; or (ii) the Seller shall have failed
to use its commercially reasonable efforts to satisfy the condition (insofar
as the satisfaction of such condition was within the Seller's control) to the
Purchaser's obligation to consummate such transaction set forth in Section 8.1
by August 31, 1996. The Purchaser acknowledges that the possible increase in
the Servicing Retainer is not in the nature of a remedy but rather reflects
certain assumptions made by the Purchaser in offering, with BlackRock, to
purchase the Transferred Assets at the Purchase Price and Corresponding
Purchase Price.
"Specific Asset Transfer" means the transfer of any individual
Transferred Asset.
"Transfer Instruments" means such good and sufficient deeds, bills of
sale, assignments, assignment and assumption agreements, notice filings and
other instruments of sale, conveyance, transfer, assignment and assumption, in
form and substance reasonably satisfactory to the parties and as shall be
required to transfer to the Purchaser the Designated Transferred Assets, and
as shall be required to evidence the Purchaser's agreement to assume, pay,
perform, fulfill and discharge the Assumed Liabilities.
"Transferred Assets" means: (i) the Loan Assets; (ii) the REO Assets;
(iii) Contracts entered into by the Seller prior to the Closing Date relating
to (A) the sale of any real property subject to a mortgage comprising a Loan
Asset, title to which was taken by the Seller after the Cut-Off Date, and (B)
the sale of any REO Asset; (iv) Contracts entered into by the Seller prior to
the Closing Date relating
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to the sale of any Loan Asset; and (v) Contracts with tenants on or other
parties in possession of (A) any real property subject to a mortgage
comprising a Loan Asset, title to which was taken by the Seller after the
Cut-Off Date, and (B) any REO Asset. References to the "Designated Transferred
Assets" are to the Designated Loan Assets, the Designated REO Assets, and any
Contracts described in clauses (iii), (iv) or (v) above relating to such
Designated Loan Assets and Designated REO Assets, and references to the
"Remaining Transferred Assets" are to the Remaining Loan Assets, the Remaining
REO Assets and any Contracts described in clauses (iii), (iv) or (v) above
relating to such Remaining Loan Assets or Remaining REO Assets.
1.2 Interpretation. The headings preceding the text of Articles,
Sections and subsections and Schedules included in this Agreement are for
convenience only and shall not be deemed part of this Agreement or be given
any effect in interpreting this Agreement. The use of the terms "including" or
"include" shall, in all cases, mean "including, without limitation," and
"include, without limitation," respectively. The use of the masculine,
feminine or neuter gender herein shall, as applicable, also refer to the other
genders. Except as the context otherwise requires, the use of the singular
form of any term shall also refer to the plural, and vice versa. Unless the
context otherwise requires, whenever the terms "hereto", "hereunder", "herein"
or "hereof" are used in this Agreement, such terms shall be construed as
referring to this entire Agreement and references to "Articles", "Sections",
"subsections", "clauses", "Schedules", "Exhibits", "Preamble" and "Recitals"
shall be construed as referring to those of this Agreement. References in this
Agreement to "to the knowledge" of the Purchaser means to the actual knowledge
of the officers, employees and agents of the Purchaser who were engaged in the
evaluation, negotiation and due diligence investigations with respect to the
transactions contemplated hereby. References "to the knowledge" of the Seller
means to the actual knowledge of the senior executives of the Seller (at its
headquarters), after due inquiry made of other employees of the Seller whom
such senior executives reasonably believe are knowledgeable in the subject
matter in issue, which employees shall have made reasonable inquiry into the
records and files of the Seller.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale. Upon the terms, and subject to the conditions,
of this Agreement, the Seller agrees to sell, assign, transfer, convey and
deliver to the Purchaser, without recourse, representation or warranty, except
as expressly provided in this Agreement, all of the Seller's right, title and
interest existing at the Closing in and to: (a) the Designated Transferred
Assets; and (b) any books and records of the Seller relating to the Designated
Transferred Assets (other than income tax, historical financial and employment
records of the Seller or other similar records relating to the business and
operations of the Seller on an aggregated basis (but the Seller shall be under
no obligation to separate any such books and records among Designated
Transferred Assets and Remaining Transferred Assets). It is understood and
agreed that Schedules A and B reflect certain matters as of the Cut-Off Date
and that, as of the Closing Date, the right, title and interest of the Seller
in and to the Designated Loan Assets and the Designated REO Assets will,
subject to the terms of this Agreement, be different from that existing on the
Cut-Off Date.
2.2 Certain Transferred Assets. Anything in this Agreement to the
contrary notwithstanding, this Agreement shall not constitute an agreement to
assign any rights under any Contract comprising a Designated Transferred Asset
or any claim, right or benefit thereunder or resulting therefrom if an
assignment thereof, without the consent of a third Person, would constitute a
breach or violation thereof and such consent is not obtained prior to the
Closing. If (i) such a consent is so required for the assignment of such
Contract and has not been obtained prior to the Closing or (ii) an attempted
assignment of such Contract is ineffective, then the Seller and the Purchaser
shall enter into a mutually
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acceptable arrangement relating to such Contract to provide the Purchaser with
the practical economic benefits of, and to impose on the Purchaser the
obligations under, such Contract.
2.3 Assumed Liabilities. At the Closing, the Purchaser shall assume,
and at the Closing or thereafter, when due to be paid, performed, fulfilled
and discharged, the Purchaser shall pay, perform, fulfill and discharge all
liabilities, duties and obligations of the Seller relating to the Designated
Transferred Assets, whether or not existing or known on the date of this
Agreement or on the Closing Date (collectively, the "Assumed Liabilities").
2.4 Certain Liabilities. If the Seller is to provide to the Purchaser
the practical benefits under a Contract comprising a Designated Loan Asset
under an arrangement pursuant to Section 2.2, all liabilities, duties and
obligations of the Seller under such Contract shall be Assumed Liabilities.
2.5 Closing.
(a) Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Article
IX, the closing (the "Closing") of the purchase and sale of the Designated
Transferred Assets hereunder shall take place at the offices of Mayer, Brown &
Platt in Washington, D.C. (or such other place as the parties may agree), on
August 30, 1996, or, unless otherwise agreed, at such later date, not later
than September 30, 1996, which is five business days following the date that
the respective condition(s) to the obligations of the parties set forth in
Article VIII have been satisfied or waived (the date of the Closing being
hereinafter called the "Closing Date"). At the Closing:
(i) The Purchaser shall pay to the Seller the Purchase
Price, less the Estimated Net Credit, by wire transfer of immediately
available funds to such bank account as may be designated in a writing
delivered to the Purchaser by the Seller at least two business days
prior to the Closing.
(ii) The Purchaser shall execute and deliver to the Seller
the Instrument of Assumption.
(iii) The Seller shall execute and deliver to the Purchaser
the Bill of Sale and Assignment and the Power of Attorney and shall
deliver to the Purchaser the Chrysler Financial Guaranty, duly
executed by Chrysler Financial.
(iv)(A) The Seller shall execute and deliver a certificate,
dated the Closing Date, certifying as to the matters specified in
Section 8.1 and (B) the Purchaser shall execute and deliver a
certificate, dated the Closing Date, certifying as to the matters
specified in Section 8.2(a).
(v) The Purchaser shall deliver (A) certified copies of
resolutions of the Board of Directors of the Purchaser, or a duly
authorized committee thereof, giving any necessary approval or
authorization with respect to this Agreement and the Purchaser's
Related Agreements, (B) incumbency and signature certificates as to
the officers of the Purchaser executing documents on behalf of the
Purchaser, (C) certified copies of the certificate or articles of
incorporation and bylaws of the Purchaser, and (D) a good standing
certificate from the Office of Thrift Supervision with respect to the
Purchaser (provided that, if unavailable by the Closing, the Purchaser
may deliver such good standing certificate after the Closing).
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(vi) The Seller shall deliver (A) certified copies of
resolutions of the Boards of Directors of the Seller and Chrysler
Financial, or a duly authorized committee thereof, giving any
necessary approval or authorization with respect to this Agreement and
the Seller's Related Agreements and the Chrysler Financial Guaranty,
respectively, (B) incumbency and signature certificates as to officers
of the Seller and Chrysler Financial executing documents on behalf of
the Seller and Chrysler Financial, respectively, (C) certified copies
of the certificate or articles of incorporation and bylaws of the
Seller and Chrysler Financial, and (D) a good standing certificate
from the Secretaries of State of Delaware and Michigan with respect to
the Seller and Chrysler Financial, respectively.
(b) As between the Seller and the Purchaser, the transfer of the
Designated Transferred Assets and assumption of the Assumed Liabilities will
be effective as of the Closing and such transfer and assumption will be
evidenced by the Bill of Sale and Assignment and the Instrument of Assumption.
The execution at the Closing by the Seller of other Transfer Instruments will
not be necessary to consummate the transactions contemplated hereby, except
that, at the request of the Purchaser, the Seller shall execute and deliver at
the Closing such additional Transfer Instruments as may be prepared by the
Purchaser in form and substance reasonably satisfactory to the Seller.
(c) Pursuant to the Power of Attorney, the Seller shall appoint
the Purchaser its attorney-in-fact to execute for the Seller any other
Transfer Instruments with respect to Specific Asset Transfers (which may be
prepared by the Purchaser and shall be consistent with the terms and
conditions of this Agreement), including deeds in respect of the Designated
REO Assets, and to take such actions on behalf of the Seller consistent with
the terms of this Agreement as may be necessary to effect the perfection,
filing or recording of any such Transfer Instruments and the filing of
information returns pursuant to Section 7.6. The Purchaser, for itself and on
behalf of the Seller, will be responsible for causing any legal requirements
applicable to any Specific Asset Transfer to be complied with in order to
effect such perfection, filing or recording and shall use its commercially
reasonable efforts to promptly effect such perfection, filing or recording.
Except for representations and warranties made by the Seller in this
Agreement, the transfer of Designated REO Assets by the Seller to the
Purchaser will be on a quit claim basis. Subject to the foregoing, following
the Closing, the Seller and the Purchaser will reasonably cooperate with the
other in executing such additional documents and taking such additional acts
as will better evidence the transfer of Designated Transferred Assets and
assumption of Assumed Liabilities contemplated by this Agreement. At the
Closing, the Seller shall provide to the Purchaser a certification to the
effect that the Seller is not a "foreign person" within the meaning of Section
1445(b)(2) of the Internal Revenue Code of 1986, as amended. The form of
certification will be prepared by the Purchaser and be in form and substance
reasonably satisfactory to the Seller.
2.6 Relation with Other Asset Purchase Agreement. Purchaser
acknowledges and agrees that it has entered into various arrangements with
BlackRock with respect to the Transferred Assets. Consequently, the Seller has
no responsibility or liability with respect to any allocation of the
Transferred Assets between the Purchaser and BlackRock, or any allocation of
the rights and obligations thereof under this Agreement and the BlackRock
Asset Purchase Agreement, including as to the application of Indemnifiable
Losses and Corresponding Indemnifiable Losses of the Purchaser or BlackRock to
the deductible amount contemplated in Section 10.2(b) and the Corresponding
Provision. The books and records of the Seller to be transferred hereunder and
under the BlackRock Asset Purchase Agreement shall be transferred as a whole
at the Closing and Corresponding Closing, and the Seller shall not be
responsible for ensuring that any particular books and records are delivered
into the possession of the Purchaser or BlackRock. The Purchaser shall not
assert that it has no liability in respect of any obligation hereunder on the
basis that such obligation arises or should have arisen under
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the BlackRock Asset Purchase Agreement, unless BlackRock shall accept, if such
liability shall be established, responsibility therefor in writing.
ARTICLE III
PAYMENT OF PURCHASE PRICE
3.1 Estimated Net Credit. No later than two business days prior to the
Closing, the Seller will prepare and deliver to the Purchaser a reasonable
estimate of the Net Credit (the "Estimated Net Credit"). At the Closing, the
Purchaser will pay the Purchase Price, less the Estimated Net Credit to the
Seller pursuant to Section 2.5.
3.2 Determination of Net Credit; Dispute Resolution.
(a) Review by the Purchaser. Within 15 days after the Closing,
the Seller will prepare and deliver to the Purchaser a calculation of the
actual Net Credit, showing in reasonable detail the items comprising the
Servicing Period Cash Flow, Servicing Expenses, New Extensions and Servicing
Retainer (the "Net Credit Statement"). Following delivery of the Seller's
calculation, the Seller and the Purchaser will in good faith attempt to agree
on the Net Credit. If agreement is not reached within 10 days after the date
that the Net Credit Statement is delivered to the Purchaser, the Purchaser
shall give at the end of such 10-day period written notice of its disagreement
to the Seller, which notice shall set forth in reasonable detail the items on
the Net Credit Statement with which the Purchaser disagrees and the amounts of
such items which the Purchaser believes are correct. Unless such written
notice is timely received, the Purchaser shall be deemed to have agreed in all
other respects with the Net Credit Statement. Purchaser shall coordinate its
response to the Net Credit Statement with BlackRock's response to the
Corresponding Net Credit Statement and the Purchaser's response hereunder
shall not be inconsistent with that of BlackRock under the Corresponding
Provision.
(b) Resolution of Disagreements. If the Purchaser shall timely
give notice of disagreement as provided in Section 3.2(a), the Seller and the
Purchaser shall promptly thereafter cause an independent accounting firm of
nationally recognized standing reasonably satisfactory to the Seller and the
Purchaser (who shall not have any material relationship with Chrysler
Financial, the Seller or the Purchaser) (the "Independent Accounting Firm") to
review this Agreement, the Net Credit Statement and the Purchaser's notice of
disagreement and to render, as promptly as practicable, its determination of
the Net Credit. The Seller and the Purchaser agree that in any event the
Independent Accounting Firm and the Corresponding Independent Accounting Firm
shall be the same Person. In making its determination, the Independent
Accounting Firm shall consider only those items or amounts that are in
dispute. Such determination shall be final, conclusive and binding upon the
Seller and the Purchaser; provided that any item in dispute shall not, in any
event, be determined to be in an amount which is more favorable to the
Purchaser than the amount set forth by the Purchaser in its notice of
disagreement or more favorable to the Seller than the amount set forth by the
Seller in the Net Credit Statement. The fees and charges of the Independent
Accounting Firm in making such review and preparing such report shall be borne
equally by the Seller and the Purchaser.
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3.3 Post-Closing Payment.
(a) Final Settlement. Upon the final agreement or determination
of the Net Credit, the Purchaser shall, in the manner and with interest as
provided in Section 3.3(b), pay the Seller the amount, if any, by which the
Estimated Net Credit exceeds the Net Credit, or the Seller shall, in the
manner and with interest as provided in Section 3.3(b), pay the Purchaser the
amount, if any, by which the Net Credit exceeds the Estimated Net Credit. Any
such payment pursuant to this Section 3.3(a) shall be made at a mutually
convenient time and place (i) within fifteen days after delivery of the Net
Credit Statement by the Seller pursuant to Section 3.1 if no notice of
disagreement is delivered pursuant to Section 3.2(a) or (ii) if a notice of
disagreement is delivered by the Purchaser pursuant to Section 3.2(a), then
within ten days after the determination of the Net Credit by the Independent
Accounting Firm pursuant to in Section 3.2(b).
(b) Method of Payment. Any payment pursuant to this Section 3.3
shall be made by wire transfer by the Purchaser or the Seller, as the case may
be, of immediately available funds to such account of the party to receive
such payment as may be designated by such party. The amount of any payment to
be made pursuant to this Section 3.3 shall bear interest from the Closing Date
until the date of payment at a rate per annum equal to one month LIBOR on the
Closing Date, as reported in the "Money Rates" box in the Wall Street Journal,
plus 0.75%. Such interest shall be payable at the same time as the payment to
which it relates and shall be calculated daily on the basis of a year of 365
days and the actual number of days for which due.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser, as of the
date hereof and the Closing Date (except as expressly provided below), as set
forth in this Article IV:
4.1 Organization and Existence. The Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of
Delaware.
4.2 Authority and Approval; Binding Effect. The Seller has the
corporate power and authority to execute, deliver and perform this Agreement
and its Related Agreements and to consummate the transactions contemplated
hereby and thereby. All corporate acts and proceedings required to be taken by
or on the part of the Seller to authorize it to execute, deliver and perform
this Agreement and its Related Agreements and to consummate the transactions
contemplated hereby and thereby have been duly and validly taken. This
Agreement constitutes, and upon the execution and delivery by the Seller and
the other parties thereto of the Related Agreements, the Seller's Related
Agreements will constitute, the valid and binding agreements of the Seller,
enforceable against the Seller in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally or by
judicial discretion as to the availability of equitable remedies or by general
equitable principles.
4.3 No Conflict. The execution, delivery and performance by the Seller
of this Agreement and its Related Agreements, and the consummation by the
Seller of the transactions contemplated hereby and thereby, do not and will
not: (a) violate or conflict with the certificate of incorporation or bylaws
of the Seller; (b) assuming satisfaction of the matters referred to in the
following clause (c), violate or conflict with any law or governmental
regulation applicable to the Seller or any applicable order, arbitration
award, judgment or decree to which the Seller is a party or by which it is
bound; or (c) require any filing or registration by the Seller with, or
approval, consent, authorization or other
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action with respect to the Seller by, any governmental authority other than
(i) as shall be obtained prior to the Closing, and (ii) any such filings,
registrations, approvals, consents, authorizations or actions which are
required with respect to any Specific Asset Transfer.
4.4 No Conflict with Contracts. The execution, delivery and
performance by the Seller of this Agreement and its Related Agreements, and
the consummation by the Seller of the transactions contemplated hereby and
thereby, do not and will not: (a) violate or conflict with, result in a breach
of, constitute a default under (whether with notice or the lapse of time or
both), or accelerate or permit the acceleration of the performance required
by, any Contract to which the Seller is a party or by which it is bound or by
which any of the Designated Transferred Assets is bound, or (b) result in the
creation of any Lien upon any of the Transferred Assets.
4.5 Loan Assets. As of the Cut-Off Date:
(a) The information included on Schedule A with respect to: (i)
the amounts reflected in the Seller's books as the outstanding principal
balances of the Designated Loan Assets; (ii) the interest rates applicable to
the Designated Loan Assets; (iii) the Seller's lien position as to the
Designated Loan Assets in relation to any other mortgages; (iv) maturity dates
as to the Loan Assets; and (v) the next payment due date as to the Designated
Loan Assets, was true and correct in all material respects.
(b) Except as set forth in Section 4.5 of the Disclosure
Schedule:
(i) The Seller was the sole owner of the Designated Loan
Assets (including the rights under each promissory note or mortgage
comprising the Designated Loan Assets) and had good and marketable
title thereto, and had the full right to transfer and sell the
Designated Loan Assets to the Purchaser, free and clear of any Lien;
(ii) The Seller had obtained an ALTA lender's title
insurance policy, attorney title opinion or other customary
documentation regarding title matters with respect to the real
property subject to each mortgage comprising Designated Loan Assets
and where such insurance has been obtained, such policy states that:
(A) the Seller, and its successors and assigns (or successors to the
ownership of the secured indebtedness, or words to similar effect), is
the insured with respect to such mortgage up to an amount (or, in the
case of multiple collateral, up to an amount, when aggregated with the
insured amounts under the other lender's title policies in respect of
such additional collateral) that is not less than the outstanding
principal amount of the related Designated Loan Asset (or Designated
Loan Assets) as of the Cut-Off Date and (B) the lien priority of such
mortgage, relative to any other mortgage noted thereon, corresponds to
the lien priority for such mortgage set forth in Schedule A;
(iii) No Designated Loan Asset comprised a participation
in any loan as to which other Persons are also participants;
(iv) The obligations of the Obligor under the Contracts
comprising each Designated Loan Asset were valid and enforceable by
the Seller in accordance with their respective terms, except as such
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors' rights generally or by
judicial discretion as to the availability of equitable remedies or by
general equitable principles;
(v) The Seller was not in default in the performance of
any of its obligations under any of the Contracts comprising the
Designated Loan Assets;
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(vi) No terms of any promissory note or mortgage comprising
a Designated Loan Asset had been altered in any material respect
(including by way of discharge, release, or subordination), except as
reflected in the Due Diligence Information;
(vii) The rights of the Seller under any promissory note or
mortgage comprising a Designated Loan Asset derived from a bona fide
extension of credit and, to the knowledge of the Seller, such rights
were not subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, except as would not
constitute a breach of Section 4.5(iv) or (vi); and
(viii) The Seller was not obligated with respect to any
Designated Loan Assets to make additional extensions of credit, except
as reflected in the Due Diligence Information.
4.6 REO Assets. As of the Cut-Off Date:
(a) The information included on Schedule B with respect to the
amounts reflected in the Seller's books was true and correct in all material
respects.
(b) Except as set forth on Section 4.6 of the Disclosure
Schedule:
(i) The Seller was the sole owner of the Designated REO
Assets and had the full right to transfer and sell the Designated REO
Assets to the Purchaser, free and clear of any Lien, except for
Permitted Liens, and except as reflected in the Due Diligence
Information;
(ii) To the knowledge of the Seller, all work contracted by
the Seller with third parties in connection with the physical
condition of the Designated REO Assets had been performed by such
contractor in a workmanlike manner and in compliance with applicable
building codes;
(iii) With respect to each Designated REO Asset, an ALTA
owner policy of title insurance could be obtained by the Purchaser
from a recognized title insurance company authorized to conduct an
insurance business in the area in which the Designated REO Asset is
located (assuming such title insurance is customarily obtained in such
area in connection with sales of real property); and
(iv) The Seller has not received notice of any pending
proceeding for the total or partial condemnation of any Designated REO
Asset and, to the knowledge of the Seller, no such proceeding has been
threatened.
4.7 Amounts on Deposit. The information included on Schedule C was, as
of the Cut-Off Date, true and correct in all material respects.
4.8 Litigation. Except as set forth in Section 4.8 of the Disclosure
Schedule, as of the CutOff Date, there was no legal, administrative or
arbitration proceeding, suit or action of any nature pending or, to the
knowledge of the Seller threatened, against the Seller.
4.9 Permits and Other Operating Rights; Compliance with Laws. To the
knowledge of the Seller, except as set forth on Section 4.9 of the Disclosure
Schedule: (a) the Seller possesses all governmental permits and authorizations
necessary to permit it to operate its business; and (b) the Seller has
complied with applicable laws (other than Environmental Laws, which are the
subject of Section 4.10) relating to the extension of credit.
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4.10 Environmental Matters. As of the Cut-Off Date, and except as set
forth in Section 4.10 of the Disclosure Schedule:
(a) To the knowledge of the Seller: (i) there were no claims
which have been asserted by third parties (including governmental agencies)
asserting that the Seller may have liability under applicable Environmental
Laws with respect to any Designated Transferred Asset; (ii) the Seller had
received no notices from any third party identifying any such potential
liability with respect to any Designated Transferred Asset; and (iii) the
Seller had complied with the environmental policies adopted by the Seller from
time to time in the making of extensions of credit secured by real property
and in taking real property in foreclosure or similar proceedings with respect
to such extensions of credit.
(b) Since the date of the Seller's acquisition of title to each
of the Designated REO Assets, the Seller has not, and to the Seller's
knowledge no other Person (including any agent of the Seller) has, discharged
or released any substance, or taken any other action, which would result in
any liability under applicable Environmental Laws and which would have, with
respect to any specific Designated REO Asset, a material adverse effect on the
value thereof.
(c) Section 4.10 of the Disclosure Schedule sets forth a
complete list of all of the written reports from environmental engineering
consultants received by the Seller with respect to REO Assets.
4.11 Operations Since Cut-Off Date. Since the Cut-Off Date, the Seller
has conducted its operations, and has maintained its books and records, in
substantially the same manner in which it conducted such operations, and
maintained such books and records, from January 1, 1995 through the Cut-Off
Date, except as contemplated in Section 6.1.
4.12 Brokers. Neither the Seller nor Chrysler Financial has engaged
any investment banker, broker or finder in connection with the transactions
contemplated in this Agreement who may be entitled to a fee or commission
payable by the Purchaser or any of its Affiliates.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller, as of the
date hereof and the Closing Date, as set forth in this Article V:
5.1 Organization and Existence. The Purchaser is a federal savings
bank duly incorporated, validly existing and in good standing under the laws
of the United States.
5.2 Authority and Approval; Binding Effect. The Purchaser has the
corporate power and authority to execute, deliver and perform this Agreement
and its Related Agreements and to consummate the transactions contemplated
hereby and thereby. All corporate acts and proceedings required to be taken by
or on the part of the Purchaser to authorize the Purchaser to execute, deliver
and perform this Agreement and its Related Agreements and to consummate the
transactions contemplated hereby and thereby have been duly and validly taken.
This Agreement constitutes, and upon the execution and delivery by the
Purchaser and the other parties thereto of the Related Agreements, the
Purchaser's Related Agreements will constitute, the valid and binding
agreements of the Purchaser, enforceable against the Purchaser in accordance
with their respective terms, except as such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the
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enforcement of creditors' rights generally or by judicial discretion as to the
availability of equitable remedies or by general equitable principles.
5.3 No Conflict. The execution, delivery and performance by the
Purchaser of this Agreement and its Related Agreements, and the consummation
by the Purchaser of the transactions contemplated hereby and thereby, do not
and will not: (a) violate or conflict with the certificate of incorporation or
bylaws of the Purchaser; (b) violate or conflict with any law or governmental
regulation applicable to the Purchaser or any applicable order, arbitration
award, judgment or decree to which the Purchaser is a party or by which it is
bound; (c) violate or conflict with, result in a breach of, constitute a
default under (whether with notice or the lapse of time or both), or
accelerate or permit the acceleration of the performance required by, any
Contract to which the Purchaser is a party or by which it is bound or by which
any of its property is bound; or (d) require any filing or registration by the
Purchaser with, or approval, consent, authorization or other action with
respect to the Purchaser by, any governmental authority.
5.4 Funds Available. The Purchaser has sufficient cash, lines of
credit or other sources of available funds to enable it to make the payments
in the amounts and in the manner contemplated by this Agreement and its
Related Agreements.
5.5 Litigation. There is no legal, administrative or arbitration
proceeding, suit or action of any nature pending or, to the knowledge of the
Purchaser, threatened against the Purchaser which would materially impair the
ability of the Purchaser to perform its obligations under this Agreement or
any of the Purchaser's Related Agreements.
5.6 Brokers. Neither the Purchaser nor any of its Affiliates has
engaged any investment banker, broker or finder in connection with the
transactions contemplated in this Agreement who may be entitled to a fee or
commission payable by the Seller or Chrysler Financial.
ARTICLE VI
COVENANTS OF THE SELLER
The Seller covenants and agrees with the Purchaser as set forth in
this Article VI:
6.1 Servicing of Transferred Assets. From the beginning of the
Servicing Period to the date of this Agreement, the Seller has serviced the
Designated Transferred Assets as described in Section 4.11 and, for the
remainder of the Servicing Period, will service the Designated Transferred
Assets as so described, subject to the provisions of this Section 6.1 and
Schedule E. The Seller will have no liability to the Purchaser in respect of
any act or omission (including in connection with disposition decisions on
Designated Transferred Assets) if such act or omission was taken or made in
good faith and consistent with Section 4.11 (and, after the date of this
Agreement, this Section 6.1 and Schedule E). Subject to any restrictions in
Schedule E, the Seller may incur Servicing Expenses, provided, however,
without the prior consent of the Purchaser, payments of Servicing Expenses in
the aggregate have not been prior to the date hereof, and will not be after
the date hereof, in excess of $1,125,000 per month and such amounts have not
been and will not be paid to Affiliates of the Seller and/or its employees. In
addition, after the date of this Agreement, without the prior consent of the
Purchaser, the Seller may not incur any Servicing Expense with respect to a
specific Transferred Asset which, when combined with all other Servicing
Expenses incurred after the date of this Agreement with respect to such
Transferred Asset, exceeds $5,000. Subject to the foregoing, Servicing
Expenses may be paid by the Seller in accordance with the Seller's customary
practices but any Servicing Expenses that have not been paid as of the Closing
will be Assumed Liabilities. In respect of such servicing during the
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Servicing Period, the Seller will be entitled to retain the Servicing
Retainer. New Extensions may not be made without the joint approval of the
Seller and the Purchaser, except for New Extensions made or committed to be
made prior to August 1, 1996 and disclosed in the Due Diligence Information.
6.2 Access. The Seller shall afford representatives of the Purchaser
reasonable access, during normal business hours, to the management, facilities
and books and records of the Seller. Nothing herein shall be construed as
requiring the Seller to disclose or give access to the Purchaser any
information or books and records that would unreasonably disrupt the normal
course of the Seller's business or violate the terms of any Contract to which
the Seller is bound or any applicable law or regulation.
6.3 Consents.
(a) Prior to the Closing, the Seller shall, in cooperation with
the Purchaser, use its reasonable efforts (without necessity of incurring any
undue additional expense) to procure any required third party consents to the
transfer of any Contract rights and obligations comprising Designated
Transferred Assets and Assumed Liabilities. The failure to obtain any such
consent will not constitute a breach of this Agreement or the failure of any
condition to the obligation of the Purchaser to consummate the transactions
contemplated hereby.
(b) Prior to the Closing, the Seller shall, in cooperation with
the Purchaser and if so requested by the Purchaser, use its reasonable efforts
(without necessity of incurring any additional expense) to assist in the
Purchaser's procurement of any governmental licenses and permits needed by the
Purchaser in connection with the Transferred Assets. The failure of the
Purchaser to obtain any such licenses or permits will not constitute a failure
of any condition to the obligation of the Purchaser to consummate the
transactions contemplated hereby.
6.4 Reasonable Efforts. Subject to the terms and conditions of this
Agreement, the Seller will execute and deliver its Related Agreements at the
Closing. The Seller shall use all commercially reasonable efforts to cause the
condition set forth in Section 8.1 to be satisfied as soon as practicable
after the date of this Agreement.
6.5 Inconsistent Activities. Unless and until this Agreement has been
terminated pursuant to Article IX, the Seller will not solicit any offer to
acquire a material portion of the Transferred Assets, whether by merger,
purchase of stock, purchase of assets or other similar transaction.
ARTICLE VII
COVENANTS OF THE PURCHASER
The Purchaser covenants and agrees with the Seller as set forth in
this Article VII:
7.1 Reasonable Efforts. Subject to the terms and conditions of this
Agreement, the Purchaser will execute and deliver its Related Agreements at
the Closing. The Purchaser shall use all commercially reasonable efforts to
cause the conditions set forth in Section 8.2 to be satisfied as soon as
practicable after the date of this Agreement.
7.2 Access. The Purchaser will, at and after the Closing, afford
promptly to the Seller and its agents reasonable access during normal business
hours to the books and records of the Purchaser relating to the Transferred
Assets and the Assumed Liabilities to the extent reasonably necessary to
permit the Seller to determine any matter relating to the Seller's rights and
obligations hereunder or
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under any Related Agreement or relating to any period ending on or before the
Closing Date (including in connection with the determination of the Net
Credit).
7.3 Confidentiality. The Purchaser will continue to comply with and be
bound by that certain confidentiality agreement, dated April 15, 1996, as
amended April 16, 1996, between Chrysler Financial and the Purchaser (the
"Confidentiality Agreement"), and the Purchaser agrees that the rights of
Chrysler Financial thereunder shall inure to the benefit of the Seller. If
this Agreement is terminated pursuant to Article IX or otherwise, the
Purchaser shall promptly return to the Seller all information relating to the
Transferred Assets, the Assumed Liabilities, and the Seller's employees and
business which is of a non-public nature (including copies of such
information) and return to the Seller or destroy all analyses, compilations,
studies and other documents of or prepared by the Purchaser or its
representatives from such information (and confirm to the Seller in writing
that it has done so). If the Closing occurs, the Confidentiality Agreement
shall be terminated and of no further force and effect, except that the
Purchaser shall maintain the confidentiality of any "Proprietary Information"
(as defined in the Confidentiality Agreement) to the extent such information
is not included in the books and records transferred to the Purchaser pursuant
to Section 2.1(b).
7.4 Legal Claims. Purchaser will, following the Closing, have itself
substituted for the Seller as the real party in interest with respect to any
foreclosure, bankruptcy or similar action involving any Designated Transferred
Asset. Purchaser will, following the Closing, assume the defense of any claims
against the Seller relating to the Designated Transferred Assets pending in
any court or other tribunal as of the Closing and will undertake the defense
of any such claims first made in such proceedings after the Closing (and based
on facts existing prior to the Closing or based on facts (other than acts
taken by the Seller) occurring after the Closing). The Designated Transferred
Assets include any counterclaims the Seller would be entitled to assert in any
such proceedings. The Seller, insofar as it shall retain any records (not
transferred pursuant to Section 2.1(b)) relating to, or personnel with
relevant knowledge of, any such actions or claims, shall reasonably cooperate
with the Purchaser in its prosecution or defense thereof, it being understood
that the Seller shall not be required to incur any unreimbursed expense in
connection therewith.
7.5 Certain Notifications. At least two business days prior to the
Closing, the Purchaser shall notify the Seller of any matters to its knowledge
which it believes may constitute a breach of the Seller's representations and
warranties.
7.6 Information Reporting. After the Closing, the Purchaser will, at
the request of the Seller, assist the Seller in complying with its tax
information reporting obligations with respect to the Designated Transferred
Assets for calendar year 1996, including through the making of such tax
reports and filings on behalf of the Seller (to the extent based on
information contained in books and records transferred to the Purchaser
pursuant to Section 2.1). Nothing herein shall be construed as imposing any
liability on the Purchaser to the Seller for any inaccuracy contained in any
such reports or filings.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Condition to the Obligations of the Purchaser. The obligations of
the Purchaser to proceed with the Closing contemplated hereby are subject to
the satisfaction at or prior to the Closing of the condition (which may be
waived, in whole or in part, by the Purchaser) that the Seller shall have
complied in all material respects with each of its covenants and agreements
contained herein to be performed at or prior to the Closing, and, except as
affected by any action expressly contemplated by or permitted under this
Agreement, each of the representations and warranties of the Seller contained
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in Sections 4.1, 4.2, 4.3, 4.4, 4.11 and 4.12 shall have been true and correct
in all material respects as of the date of this Agreement and shall be true
and correct in all material respects at and as of the Closing as if made at
and as of the Closing, and the other representations and warranties contained
in Article IV shall have been true and correct as of the Cut-Off Date.
8.2 Conditions to the Obligations of the Seller. The obligations of
the Seller to proceed with the Closing contemplated hereby are subject to the
satisfaction at or prior to the Closing of all of the following conditions,
any one or more of which may be waived, in whole or in part, by the Seller:
(a) Compliance. The Purchaser shall have complied in all
material respects with each of its covenants and agreements contained herein
to be performed at or prior to the Closing (including the payment of the
Purchase Price, less the Estimated Net Credit, as contemplated in Section 2.5)
and, except as affected by any action expressly contemplated by or permitted
under this Agreement, each of the representations and warranties of the
Purchaser contained in Article V shall have been true and correct in all
material respects on the date of this Agreement and shall be true and correct
in all material respects at and as of the Closing as if made at and as of the
Closing.
(b) Closing Under Other Asset Purchase Agreement. BlackRock
shall be unconditionally obligated to purchase the Remaining Transferred
Assets as contemplated in the BlackRock Asset Purchase Agreement (and the
Corresponding Closing shall occur simultaneously with the Closing).
ARTICLE IX
TERMINATION
9.1 Grounds for Termination. This Agreement may be terminated, and the
transactions contemplated hereby abandoned, at any time prior to the Closing:
(a) By the mutual written agreement of the Seller and the
Purchaser;
(b) By the Seller or by the Purchaser if the Closing shall not
have been consummated on or before September 30, 1996; provided that a party
shall not have the right to so terminate this Agreement if the failure of the
Closing to have occurred shall be due to a breach by such party of any of its
agreements or covenants contained herein required to be performed by it at or
prior to the Closing pursuant to the terms hereof; or
(c) By the Purchaser, as permitted in Section 11.1.
Any party desiring to terminate this Agreement pursuant to the foregoing
Section 9.1(b) shall give notice of such termination to the other party.
9.2 Effect of Termination. If this Agreement is terminated, the
provisions of this Agreement shall be of no further force and effect, except
that the rights and obligations of the parties under Sections 7.3, 11.1, 11.4,
11.11, 11.14, 11.15 and 11.16 and this Section 9.2 shall survive such
termination. If the transactions contemplated in Section 2.5 are not
consummated on or before September 30, 1996, the Responsible Party, if any,
shall, as compensation to the other party for time and effort expended by such
other party in connection with the transactions contemplated hereby and the
negotiation of this Agreement (and, if such other party is the Seller, for its
covenant set forth in paragraph 5(b) of the Letter Agreement and inability to
pursue alternatives to the Purchaser and the transactions contemplated hereby
as a result of the execution of this Agreement), pay to such other
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party a "break-up fee" of $1.5 million. The break-up fee will be the sole and
exclusive remedy arising out of the Responsible Party's failure to consummate
the transactions contemplated hereby and the Responsible Party shall have no
further, and its Affiliates, directors, officers, employees, agents,
consultants and other representatives will have no, liability in respect
thereof.
ARTICLE X
EXTENT AND SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS; INDEMNIFICATION
10.1 Survival; Remedy for Breach.
(a) The representations and warranties contained in this
Agreement shall survive the Closing until the date which is thirty months
after the Closing Date, at which time they shall expire, except that the
representations and warranties contained in Section 4.10 shall survive the
Closing until the date which is twelve months after the Closing Date, at which
time they shall expire. No claim regarding a breach of any such representation
or warranty shall be made for the first time after the date such
representation or warranty expires. The agreements and covenants of the
parties contained in this Agreement or any Related Agreement shall survive the
Closing, provided, that no claim regarding a breach of any such agreement or
covenant contained in this Agreement occurring before the Closing shall be
made for the first time after the date which is thirty months after the
Closing Date. With respect to any claim that is made in writing within any
applicable time period, the period of time for commencing an action or suit in
a court of competent jurisdiction to resolve such claim shall expire on the
first anniversary of the making of such claim and no such action or suit shall
be commenced after such date and, in any event, no such action or suit may be
brought after expiration of the applicable statute of limitations. Any right
to indemnification pursuant to Sections 10.2 and 10.3 shall only apply to
Indemnifiable Losses with respect to which the party seeking indemnification
shall have notified the other party as set forth Section 10.4(a) or (b) within
the applicable time period set forth in this Section 10.1(a).
(b) Except as provided in Section 9.2, the sole and exclusive
remedy of the Purchaser and the Seller for any breach of any covenant or
agreement, or any inaccuracy or other breach of any representation or
warranty, contained in this Agreement, any Related Agreement or any other
writing delivered pursuant hereto or in connection herewith or for any other
matter arising under or in connection with this Agreement, any Related
Agreement or any such other writing shall be the indemnities contained in
Sections 10.2 and 10.3, respectively, including enforcement thereof in a court
of competent jurisdiction, and the parties hereby waive, release and agree not
to assert any other right, whether arising by statute, common law, or
otherwise, in connection therewith, provided, that a party shall be entitlted
to setoff any amount owed by the other party to such party under this
Agreement against any amount owed by such party to the other party under this
Agreement. Without limitation of the foregoing (and except, in the case of the
Seller, as provided in the Chrysler Financial Guaranty), a party's Affiliates,
directors, officers, employees, agents, consultants and other representatives
will have no liability in respect any breach by such party hereunder.
Notwithstanding anything to the contrary contained herein, neither the Seller
nor the Purchaser shall be liable to the other for any consequential,
incidental, indirect, punitive or special damages suffered by the other
(including for loss of profits, business or goodwill), regardless of whether
such liability is based on breach of contract, tort, strict liability, breach
of warranties, failure of essential purpose or otherwise, and even if advised
of the likelihood of such damages; provided, however, that the foregoing
limitation shall not affect the calculation of Indemnifiable Losses incurred
by the Seller or the Purchaser in connection with claims made by Persons other
than the Seller or the Purchaser (or their respective Affiliates).
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10.2 Indemnification by the Seller.
(a) Subject to Sections 10.1 and 10.2(b), the Seller hereby
agrees to indemnify the Purchaser against, and agrees to hold it harmless
from, any and all Indemnifiable Losses actually incurred or suffered by the
Purchaser which are the direct result of: (i) any inaccuracy or other breach
of any representation or warranty made by the Seller in this Agreement or any
of the Seller's Related Agreements; (ii) any breach of any covenant or
agreement to be performed by the Seller pursuant to this Agreement or any of
the Seller's Related Agreements; and (iii) the failure of the Seller to comply
with the "bulk sales" laws referred to in Section 11.5.
(b) The Seller shall be required to indemnify the Purchaser
hereunder as to any particular breach by the Seller of its representations,
warranties, covenants and agreements hereunder, only if, and only to the
extent that, the Purchaser's Indemnifiable Losses in respect of all such
breaches, together with BlackRock's Corresponding Indemnifiable Losses in
respect of all such breaches under the BlackRock Asset Purchase Agreement,
exceeds a deductible amount of $931,793, and the Seller's indemnification
obligation will be limited to such excess. Notwithstanding the foregoing, a
breach of the Seller's obligation to pay any adjustment upon the determination
of the Net Credit, a breach of Section 4.12, and the Seller's obligation under
Section 10.2(a)(iii) shall not be subject to the foregoing limitation, and the
amount of the Indemnifiable Losses and Corresponding Indemnifiable Losses in
respect thereof or in respect of the Corresponding Provisions shall not be
counted in determining whether such limitation has been satisfied. The maximum
aggregate amount of liability of the Seller hereunder and under the
Corresponding Provision shall be limited to an amount equal to the sum of the
Purchase Price and the Corresponding Purchase Price.
(c) If the Purchaser shall become aware of any condition which
could give rise to liability of the Seller under this Article X, the Purchaser
shall use its commercially reasonable efforts to minimize the amount of the
damages or losses that may give rise to such liability (and if the Seller has
breached this Agreement, any expenses incurred by the Purchaser to minimize
the amount of such losses or damages will, subject to the limitations in
Section 10.2(b), be reimbursed by the Seller or applied to the deductible
amount contemplated in Section 10.2(b)).
10.3 Indemnification by the Purchaser.
(a) Subject to Sections 10.1 and 10.3(b), the Purchaser hereby
agrees to indemnify the Seller against, and agrees to hold it harmless from,
any and all Indemnifiable Losses actually incurred or suffered by the Seller
which are the direct result of: (i) any inaccuracy or other breach of any
representation or warranty made by the Purchaser in this Agreement or in any
of the Purchaser's Related Agreements; and (ii) any breach of any covenant or
agreement to be performed by the Purchaser pursuant to this Agreement or any
of the Purchaser's Related Agreements (including the Purchaser's covenant to
pay, perform, fulfill and discharge the Assumed Liabilities).
(b) The maximum aggregate amount of liability of the Purchaser
hereunder and of BlackRock under the Corresponding Provision shall be limited
to an amount equal to the sum of the Purchase Price and the Corresponding
Purchase Price.
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10.4 Procedures Governing Indemnification.
(a) Subject to Section 10.4(b), as soon as is reasonably
practicable after becoming aware of a claim for indemnification under this
Article X, the party hereto seeking such indemnification (an "Indemnified
Person") shall promptly give written notice of such claim to the party hereto
against whom such indemnification is sought (the "Indemnifying Person"). Such
notice of a claim for indemnification shall specify the facts alleged to
constitute a breach and the representations, warranties, agreements and
covenants alleged to have been breached, and shall be accompanied by an
estimate of the amount of Indemnifiable Losses due to such breach, together
with such information as may be necessary for the Indemnifying Person to
determine that the limitations contained in Section 10.2(b) or 10.3(b), as
applicable, have been satisfied or do not apply. The failure of the
Indemnified Person to give such notice shall not relieve the Indemnifying
Person of its obligations with respect to such claim for indemnification
except as provided in Section 10.1(a) and except to the extent (if any) that
the Indemnifying Person shall have been prejudiced thereby.
(b) The Indemnified Person shall give notice as promptly as is
reasonably practicable to the Indemnifying Person of the assertion of any
claim, or the commencement of any suit, action or proceeding, by any Person
not a party hereto (and not an Affiliate of the Indemnifying Person) in
respect of which indemnity may be sought under this Article X (together with
such information as may be necessary for the Indemnifying Person to determine
that the limitations contained in Section 10.2(b) or 10.3(b), as applicable,
have been satisfied or do not apply). The failure of the Indemnified Person to
give notice shall not relieve the Indemnifying Person of its obligations under
this Article X except as provided in Section 10.1(a) and except to the extent
(if any) that the Indemnifying Person shall have been prejudiced thereby. The
Indemnifying Person may, at its own expense: (i) participate in the defense of
any such claim, suit, action or proceeding; and (ii) upon notice to the
Indemnified Person, at any time during the course of any such claim, suit,
action or proceeding, assume the defense thereof; provided, however, that (A)
the Indemnifying Person's counsel is reasonably satisfactory to the
Indemnified Person, and (B) the Indemnifying Person shall thereafter consult
with the Indemnified Person upon the Indemnified Person's reasonable request
for such consultation from time to time with respect to such claim, suit,
action or proceeding. If the Indemnifying Person assumes such defense, the
Indemnified Person shall have the right (but not the duty) to participate in
the defense thereof and to employ counsel, at its own expense, separate from
the counsel employed by the Indemnifying Person. Whether or not the
Indemnifying Person chooses to participate in or defend or prosecute any such
claim, suit, action or proceeding, all of the parties hereto shall cooperate
in the defense or prosecution thereof.
(c) No settlement or compromise of any such claim, suit, action
or proceeding of the kind referred to in Section 10.4(b) shall be made or
accepted by the Indemnifying Person or the Indemnified Person without the
consent of the other party (which consent shall not be unreasonably delayed or
withheld) unless the party making or accepting the settlement or compromise:
(i) if the Indemnifying Person, shall agree that the amount thereof
constitutes Indemnifiable Losses for which indemnification under this Article
X is due (or constitutes Indemnifiable Losses to be applied to the deductible
amount contemplated in Section 10.2(b)); or (ii) if the Indemnified Person,
shall agree that the amount thereof are not Indemnifiable Losses, whereupon,
in either of such cases, such compromise and settlement shall be binding upon
the other Person in the same manner as if a final judgment or decree had been
entered by a court of competent jurisdiction in the amount of such settlement
or compromise. Notwithstanding the foregoing, no settlement or compromise
shall be made or accepted by the Indemnifying Person or the Indemnified Person
without the consent of the other party (which consent shall not be
unreasonably delayed or withheld) if such settlement or compromise would
impose any material restrictions on the other party.
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ARTICLE XI
MISCELLANEOUS
11.1 Disclosure Schedule. The Seller may, from time to time prior to
or at the Closing, by notice in accordance with the terms of this Agreement,
supplement or amend any section of the Disclosure Schedule, including one or
more supplements or amendments to correct any matter which might constitute a
breach of any representation, warranty, agreement or covenant contained
herein, and all references to the Disclosure Schedule and any section thereof
which is supplemented or amended as provided in this Section 11.1 shall for
all purposes be deemed to be a reference to such Disclosure Schedule, and any
such section, as so supplemented or amended. In such event, the Purchaser
shall have a right to elect not to consummate the transactions contemplated
hereby if such correction or supplement discloses any matter or matters which,
when taken together with the items included on the Disclosure Schedule as of
the date hereof, would reasonably be expected to have significantly affected
the aggregate purchase price offered by the Purchaser and BlackRock for the
Transferred Assets (assuming that the other terms and conditions of this
Agreement and the BlackRock Asset Purchase Agreement were unchanged). Neither
the Purchaser nor the Seller shall be deemed a Responsible Party if the
Purchaser elects not to consummate the transactions contemplated hereby
pursuant to this Section 11.1. Any information disclosed pursuant to any
section of the Disclosure Schedule shall be deemed to be disclosed to the
Purchaser for all purposes of this Agreement.
11.2 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given: (i) when delivered, if delivered
personally; (ii) when sent, and receipt is confirmed, if sent by facsimile
transmission; and (iii) five business days after mailing, if mailed by
registered or certified mail, return receipt requested, to the parties at the
following addresses:
(a) If to the Seller, to:
Chrysler First Business Credit Corporation
c/o Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan 48034
Attention: Vice President and Controller
Facsimile No.: (810) 799-5244
with a copy to:
Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan 48034
Attention: General Counsel
Facsimile No.: (810) 948-3138
or to such other Person as the Seller shall designate in
writing.
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(b) If to the Purchaser, to:
Berkeley Federal Bank & Trust FSB
1675 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33401
Attention: Secretary
Facsimile No.: (561) 681-8177
with a copy to:
Berkeley Federal Bank & Trust FSB
1675 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33401
Attention: Law Department
Facsimile No.: (561) 681-8163
or to such other Person as the Purchaser shall designate in
writing.
11.3 Books and Records; Additional Deliveries. The Seller agrees that
it will, not later than sixty days after the Closing Date, deliver or cause to
be delivered to the Purchaser originals or copies of all records transferred
pursuant Section 2.1(b) to the extent not then in the possession of the
Purchaser. On or promptly following the Closing Date, the Seller shall deliver
the keys for each REO Asset to the extent available and in the possession of
the Seller or shall provide instructions as to where such keys are located.
11.4 Expenses. All costs incurred in effecting the transfer of the
Designated Transferred Assets and assumption of the Assumed Liabilities,
including the cost of preparing instruments and documents in respect of
Specific Asset Transfers, title insurance, surveys and environmental studies,
sales, stamp, transfer and similar taxes, and recording, filing, transfer and
similar fees, will be paid by the Purchaser. Except as otherwise specifically
provided in this Agreement, all legal and other costs and expenses incurred in
connection with the preparation, execution and delivery of this Agreement and
the Related Agreements and the consummation of the transactions contemplated
hereby or thereby shall be paid by the party that incurred such costs and
expenses.
11.5 Bulk Sales. The Purchaser hereby waives compliance with the
requirements of: (a) all applicable state tax laws that may require
notification of state taxing authorities and related actions in respect of
bulk sales of assets outside of the ordinary course of business; and (b) any
bulk transfer laws (such as Article 6 of the Uniform Commercial Code as
enacted in any state) or similar legislation applicable to the transactions
provided for in this Agreement, and the Seller shall have no liability to the
Purchaser with respect thereto, except as provided in Section 10.2(a)(iii).
11.6 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns, provided, however, that neither this Agreement nor any right or
obligation hereunder may be assigned or delegated by either party without the
consent of the other party hereto, except that the Purchaser may grant a
security interest in the Purchaser's rights under this Agreement arising after
the Closing to any lender that, as of the Closing, has provided, or has
committed to provide, financing to the Purchaser for the transactions
contemplated hereby, provided that: (a) such rights of the Purchaser under
this Agreement shall be collateral solely in respect of the financing provided
to the Purchaser for the consummation of the transactions
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contemplated hereby; (b) the foregoing is not, and shall not be construed as,
a waiver or other limitation of any of the Seller's rights to assert any
defenses and claims against the Purchaser and such lender; (c) the rights of
such lender shall be subject to (i) the terms of this Agreement and any
defense or claim of the Seller arising therefrom, and (ii) any other defense
or claim of the Seller against the Purchaser which accrues before the Seller
receives notification of the grant of a security interest in the Purchaser's
rights hereunder to such lender; and (d) in no event shall the lender be
entitled to any remedy in respect of any claim made against the Seller if such
claim is made at a time after which the Purchaser would not be entitled to any
remedy pursuant to the terms of this Agreement.
11.7 No Third Party Beneficiaries. Except for the Persons referred to,
and as provided, in Section 7.3, 9.2, 10.1(b) and 11.9, this Agreement is
solely for the benefit of the parties hereto and no provision of this
Agreement shall be deemed to confer upon any third Person any remedy, claim,
liability, reimbursement, cause of action or other right.
11.8 Entire Agreement; Amendment. This Agreement, together with the
Confidentiality Agreement, embodies the entire agreement of the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
with respect thereto. Except as provided in Section 11.1, this Agreement may
be amended, and any provision hereof waived, but only in writing signed by the
party against whom such amendment or waiver is sought to be enforced.
11.9 Limitation on Warranties. The Seller makes no representations or
warranties with respect to any projections, forecasts or forward-looking
information provided to the Purchaser. There is no assurance that any
projected or forecasted results will be achieved. If any modification of the
terms of any promissory note, mortgage or other Contract comprising any Loan
Asset is made or permitted by the Purchaser, then the Seller's liability for a
breach of any of its representations and warranties set forth in Article IV
shall be limited to the amount, if any, that the Seller would have been liable
if such modification had not been made. EXCEPT AS TO THOSE MATTERS EXPRESSLY
COVERED BY THE REPRESENTATIONS AND WARRANTIES IN ARTICLE IV, (i) THE SELLER
DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESSED OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, AND (ii) THE PURCHASER ACKNOWLEDGES THAT THE PURCHASER
WILL BE ACQUIRING THE DESIGNATED TRANSFERRED ASSETS ON AN "AS IS", "WHERE IS"
BASIS. The Purchaser acknowledges that it is not relying on the accuracy or
completeness of any information which is not included in this Agreement or the
Schedules hereto, and neither the Seller nor any other Person will have or be
subject to any liability to the Purchaser, any Affiliate thereof or any other
Person, resulting from the distribution of any information to, or use of any
such information by, the Purchaser, any Affiliate thereof or any of their
agents, consultants, accountants, counsel or other representatives. Except to
the extent set forth in the representations and warranties of the Seller in
Article IV, nothing herein shall be construed as a guaranty or similar
assurance as to the value or collectability of any Transferred Asset.
11.10 Public Statements. Prior to the Closing Date, except as required
by law or the rules of any stock exchange, no public announcement or other
publicity regarding the transactions referred to herein shall be made by the
Purchaser or the Seller (or their respective Affiliates) without the prior
approval of the other party (which approval shall not be unreasonably delayed
or withheld); and provided, further, that nothing in this Section 11.10 shall
prevent the Purchaser or the Seller from discussing such transactions with, or
making such announcements to, its professional advisors or to those Persons
the notification of whom or whose approval, agreement or opinion, as the case
may be, is required for consummation of any particular transaction or
transactions contemplated hereby. Such party shall exercise all reasonable
efforts to assure that such Persons will agree to keep confidential any
information relating to this Agreement.
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11.11 Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality and enforceability
of the other provisions hereof shall not be affected thereby, and there shall
be deemed substituted for the provision at issue a valid and enforceable
provision as similar as possible to the provision at issue.
11.12 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall together constitute one and the same
instrument, and shall become effective when one or more counterparts hereof
have been signed by the Purchaser and delivered to the Seller and one or more
counterparts hereof have been signed by the Seller and delivered to the
Purchaser.
11.13 Necessary and Desirable Actions. Each of the Seller and the
Purchaser agrees to cooperate fully with the other in connection with
obtaining the satisfaction of the conditions set forth in Article VIII. The
Seller and the Purchaser each agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
actions as may be reasonable, and necessary or desirable, in order to
consummate or implement expeditiously the transactions contemplated by this
Agreement.
11.14 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without reference to
principles of conflicts of laws.
11.15 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT
OR ANY RELATED AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE PARTIES HERETO IN
CONNECTION HEREWITH SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. EACH PARTY HERETO HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE. EACH PARTY HERETO FURTHER IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT ANY PARTY HERETO HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE
OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH PARTY HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE RELATED AGREEMENTS TO WHICH IT IS A PARTY.
11.16 Waiver of Jury Trial. THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, THIS AGREEMENT OR ANY RELATED AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY HERETO IN CONNECTION HEREWITH. EACH PARTY HERETO ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION AND THAT THIS
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PROVISION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY'S ENTERING INTO THIS
AGREEMENT AND EACH RELATED AGREEMENT TO WHICH SUCH OTHER PARTY IS A PARTY.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
CHRYSLER FIRST BUSINESS CREDIT
CORPORATION
ATTEST:
By:/s/ Piero DiMambro
------------------
Name: Piero DiMambro
/s/ John W. James Title: President
- ----------------
Name: John W. James
Title: Assistant Secretary
BERKELEY FEDERAL BANK & TRUST FSB
ATTEST:
By: /s/ John R. Erbey
-------------------------
Name: John R. Erbey
/s/ Steven C. Wilhoit Title: Managing Director
- --------------------
Name: Steven C. Wilhoit
Title: Assistant Secretary
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