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EXHIBIT 4E
EXECUTION COPY
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$2,550,000,000
REVOLVING
CREDIT AGREEMENT
Dated as of April 24, 1997
______________
CHRYSLER CORPORATION and
CHRYSLER CANADA LTD.,
as BORROWERS
ROYAL BANK OF CANADA,
as CANADIAN ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as ADMINISTRATIVE AGENT
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . 18
SECTION 2. THE U.S. COMMITMENTS . . . . . . . . . . . . . . . . . . . 18
2.1 The U.S. Commitments . . . . . . . . . . . . . . . . . . 18
2.2 Procedure for U.S. Loan Borrowing . . . . . . . . . . . . 18
2.3 Conversion and Continuation Options . . . . . . . . . . . 19
2.4 Certain Matters Relating to Eurodollar Loans . . . . . . 19
SECTION 3. THE CANADIAN COMMITMENTS . . . . . . . . . . . . . . . . . 21
3.1 The Canadian Commitments . . . . . . . . . . . . . . . . 21
3.2 Procedure for C$ Prime Loan Borrowing . . . . . . . . . . 21
3.3 Bankers' Acceptances . . . . . . . . . . . . . . . . . . 21
3.4 Conversion Option . . . . . . . . . . . . . . . . . . . . 24
3.5 Currency Fluctuations, etc . . . . . . . . . . . . . . . 24
SECTION 4. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . 25
4.1 Repayment of Loans; Evidence of Debt . . . . . . . . . . 25
4.2 Interest Rate and Payment Dates . . . . . . . . . . . . . 26
4.3 Facility Fees . . . . . . . . . . . . . . . . . . . . . . 27
4.4 Lending Procedures . . . . . . . . . . . . . . . . . . . 27
4.5 Termination or Reduction of Commitments . . . . . . . . . 28
4.6 Optional Prepayments . . . . . . . . . . . . . . . . . . 28
4.7 Computation of Interest and Fees . . . . . . . . . . . . 29
4.8 Pro Rata Treatment and Payments . . . . . . . . . . . . . 30
4.9 Increased Costs . . . . . . . . . . . . . . . . . . . . . 31
4.10 Capital Adequacy . . . . . . . . . . . . . . . . . . . . 31
4.11 Indemnity . . . . . . . . . . . . . . . . . . . . . . . 32
4.12 Use of Proceeds . . . . . . . . . . . . . . . . . . . . 33
4.13 Replacement of Banks . . . . . . . . . . . . . . . . . . 33
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . 33
5.1 Financial Condition . . . . . . . . . . . . . . . . . . . 34
5.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . 34
5.3 Corporate Existence . . . . . . . . . . . . . . . . . . . 34
5.4 Corporate Authorization; No Violation . . . . . . . . . . 34
5.5 Government Authorization . . . . . . . . . . . . . . . . 34
5.6 Federal Regulations . . . . . . . . . . . . . . . . . . . 34
5.7 Enforceable Obligations . . . . . . . . . . . . . . . . . 35
5.8 No Material Litigation . . . . . . . . . . . . . . . . . 35
SECTION 6. CONDITIONS PRECEDENT TO LOANS . . . . . . . . . . . . . . . 35
6.1 Conditions of Effectiveness . . . . . . . . . . . . . . . 35
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6.2 Conditions to All Facility Loans . . . . . . . . . . . 36
SECTION 7. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . 37
7.1 Financial Statements . . . . . . . . . . . . . . . . . 37
7.2 Certificates; Other Information . . . . . . . . . . . . 38
7.3 Maintenance of Corporate Existence; Compliance with
Applicable Law . . . . . . . . . . . . . . . . . . . . 38
7.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . 39
8.1 Indebtedness to Total Capitalization . . . . . . . . . 39
8.2 Limitation on Liens . . . . . . . . . . . . . . . . . . 39
8.3 Limitation on Sales and Leasebacks . . . . . . . . . . 40
8.4 Limitation on Fundamental Changes . . . . . . . . . . . 41
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . 41
SECTION 10. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . 43
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . 43
10.2 Delegation of Duties . . . . . . . . . . . . . . . . . 44
10.3 Exculpatory Provisions . . . . . . . . . . . . . . . . 44
10.4 Reliance by Agents . . . . . . . . . . . . . . . . . . 44
10.5 Notice of Default . . . . . . . . . . . . . . . . . . 44
10.6 Non-Reliance on Agents and other Banks . . . . . . . . 45
10.7 Indemnification . . . . . . . . . . . . . . . . . . . 45
10.8 Agents in their Individual Capacity . . . . . . . . . 45
10.9 Successor Agent . . . . . . . . . . . . . . . . . . . 46
SECTION 11. FOREIGN CURRENCY SUBFACILITIES . . . . . . . . . . . . . 46
11.1 Terms of Foreign Currency Subfacilities . . . . . . . 46
11.2 Currency Fluctuations, etc . . . . . . . . . . . . . . 48
SECTION 12. GUARANTEE . . . . . . . . . . . . . . 49
12.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . 49
12.2 No Subrogation, Contribution, Reimbursement or
Indemnity . . . . . . . . . . . . . . . . . . . . . . 49
12.3 Amendments, etc. with respect to the Subsidiary
Borrower Obligations . . . . . . . . . . . . . . . . 50
12.4 Guarantee Absolute and Unconditional . . . . . . . . . 50
12.5 Reinstatement . . . . . . . . . . . . . . . . . . . . 51
12.6 Payments . . . . . . . . . . . . . . . . . . . . . . . 51
12.7 Judgments Relating to Guarantee . . . . . . . . . . . 52
12.8 Independent Obligations . . . . . . . . . . . . . . . 52
SECTION 13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 53
13.1 Amendments and Waivers . . . . . . . . . . . . . . . . 53
13.2 Notices . . . . . . . . . . . . . . . . . . . . . . . 53
13.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . 54
13.4 Survival of Representations and Warranties . . . . . . 55
13.5 Payment of Expenses and Taxes . . . . . . . . . . . . 55
13.6 Successors and Assigns; Participations and
Assignments . . . . . . . . . . . . . . . . . . . . . 55
13.7 Right of Set-off . . . . . . . . . . . . . . . . . . . 58
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13.8 Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
13.9 New Banks; Commitment Increases; Commitment Reallocations. 58
13.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . 60
13.11 Judgments Relating to Chrysler Canada . . . . . . . . . . 60
13.12 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . 60
13.13 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 60
13.14 Integration . . . . . . . . . . . . . . . . . . . . . . . 61
13.15 Information . . . . . . . . . . . . . . . . . . . . . . . 61
SCHEDULES
Schedule I - Commitments
Schedule II - Liens Permitted Under Subsection 8.2(a)
EXHIBITS
Exhibit A - Form of New Bank Supplement
Exhibit B - Form of Commitment Increase Supplement
Exhibit C - Form of Opinion of Simpson Thacher & Bartlett
Exhibit D-1 - Form of Opinion of General Counsel to Chrysler
Exhibit D-2 - Form of Opinion of Fasken Campbell Godfrey, Canadian Counsel to Chrysler Canada
Exhibit E-1 - Form of Assignment and Acceptance
Exhibit E-2 - Form of Commitment Reallocation Supplement
Exhibit F-1 - Form of Addendum
Exhibit F-2 - Form of Foreign Currency Subfacility Addendum
Exhibit G - Form of Closing Certificate
Exhibit H - Form of Promissory Note
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REVOLVING CREDIT AGREEMENT dated as of April 24, 1997 among
CHRYSLER CORPORATION, a Delaware corporation ("Chrysler"), CHRYSLER CANADA
LTD., a Canadian corporation ("Chrysler Canada"), the several commercial banks
from time to time parties to this Agreement (as more specifically defined
below, the"Banks"), ROYAL BANK OF CANADA, a Canadian chartered bank ("Royal"),
as Canadian administrative agent for the C$ Banks (as defined below) hereunder,
and THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase"), as
administrative agent for the Banks hereunder.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
defined in the caption to this Agreement shall have the meanings set forth
therein, and the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Acceptance Fee": the fee payable in C$ to each C$ Bank in
respect of Bankers' Acceptances computed in accordance with subsection
3.3.
"Addendum": an addendum substantially in the form of Exhibit
F-1.
"Administrative Agent": Chase and its affiliates, as the
arranger of the Commitments and as the agent for the Banks under this
Agreement, together with any of its or their successors.
"Agents": the collective reference to the Administrative
Agent and the Canadian Administrative Agent.
"Aggregate Canadian Extensions of Credit": with respect to
any C$ Bank, at any time, the aggregate principal amount of all C$
Loans (US$ Equivalent) made by such Bank then outstanding.
"Aggregate Foreign Extensions of Credit": with respect to any
US$ Bank, at any time, the sum of (a) the aggregate Foreign Currency
Subfacility Maximum Borrowing Amounts with respect to such Bank under
any Foreign Committed Subfacility to which it is a party and (b) the
aggregate outstanding principal amount of all Foreign Currency Loans
(US$ Equivalent) made by such Bank under any Foreign Uncommitted
Subfacility to which it is a party.
"Aggregate U.S. Extensions of Credit": with respect to any
US$ Bank, at any time, the aggregate principal amount of all U.S.
Loans made by such Bank then outstanding.
"Aggregate U.S./Foreign Extensions of Credit": with respect
to any US$ Bank, at any time, the sum of the Aggregate Foreign
Extensions of Credit of such Bank and the Aggregate U.S. Extensions of
Credit of such Bank at such time.
"Agreement": this Revolving Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable BA Discount Rate":
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(a) with respect to any Schedule I C$ Bank, as applicable to
a Bankers' Acceptance being purchased by such Schedule I C$ Bank on
any day, the average (as determined by the Canadian Administrative
Agent) of the respective percentage discount rates (expressed to two
decimal places and rounded upward, if necessary, to the nearest
1/100th of 1%) quoted to the Canadian Administrative Agent by each
Schedule I C$ Reference Bank as the percentage discount rate at which
such Schedule I C$ Reference Bank would, in accordance with its normal
practices, at or about 10:00 A.M., Toronto time, on such day, be
prepared to purchase bankers' acceptances accepted by such Schedule I
Reference C$ Bank having a maturity date comparable to the maturity
date of such Bankers' Acceptance; and
(b) with respect to any Schedule II C$ Bank, as applicable to
a Bankers' Acceptance being purchased by such Schedule II C$ Bank on
any day, the average (as determined by the Canadian Administrative
Agent) of the respective percentage discount rates (expressed to two
decimal places and rounded upward, if necessary, to the nearest
1/100th of 1%) quoted to the Canadian Administrative Agent by each
Schedule II C$ Reference Bank as the percentage discount rate at which
such Schedule II C$ Reference Bank would, in accordance with its
normal practices, at or about 10:00 A.M., Toronto time, on such day,
be prepared to purchase bankers' acceptances accepted by such Schedule
II Reference C$ Bank having a maturity date comparable to the maturity
date of such Bankers' Acceptance.
"Applicable Margin": with respect to each Eurodollar Loan or
Bankers' Acceptance at any date, the applicable percentage per annum
set forth below based upon the Status and U.S. Utilization or Canadian
Utilization, as applicable, on such date (provided that if the
Commitments have been terminated prior to such date, the U.S.
Utilization and Canadian Utilization for such date shall be deemed to
be greater than 50%):
Level I Level II Level III Level IV Level V
U.S./Canadian Utilization Status Status Status Status Status
------------------------- ------ ------ ------ ------ ------
Less than or equal to
50%: 0.1300% 0.1450% 0.2150% 0.2500% 0.4250%
Greater than 50%: 0.2550% 0.2700% 0.3400% 0.3750% 0.5500%
"Assignee": as defined in subsection 13.6(c).
"Available Canadian Commitment": as to any C$ Bank, at a
particular time, an amount equal to the excess, if any, of (a) the
amount of such Bank's Canadian Commitment at such time over (b) the
Aggregate Canadian Extensions of Credit of such Bank at such time.
"Available U.S. Commitment": as to any US$ Bank, at a
particular time, an amount equal to the excess, if any, of (a) the
amount of such Bank's U.S. Commitment at such time over (b) the
Aggregate U.S./Foreign Extensions of Credit of such Bank at such time.
"BA Discount Proceeds": in respect of any Bankers' Acceptance
to be purchased by a C$ Bank on any day under subsection 3.3, an
amount (rounded to the nearest whole Canadian cent, and with one-half
of one Canadian cent being rounded up) calculated on such day by
dividing:
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(i) the face amount of such Bankers' Acceptance; by
(ii) the sum of one plus the product of:
(1) the Applicable BA Discount Rate (expressed as a
decimal) applicable to such Bankers'
Acceptance; and
(2) a fraction, the numerator of which is the
number of days remaining in the term of such
Bankers' Acceptance and the denominator of
which is 365;
with such product being rounded up or
down to the fifth decimal place and .000005
being rounded up.
"Bankers' Acceptance": a bill of exchange denominated in C$
drawn by Chrysler Canada and accepted by a C$ Bank pursuant to
subsection 3.3.
"Banking Day": in respect of any city, any day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in that city.
"Bank Rate": the upper limit of the Bank of Canada operating
band for overnight loans as announced from time to time.
"Banks": as defined in the caption to this Agreement;
provided, that (a) each reference herein to any Bank shall be deemed
to be a reference to each US$ Bank and to each C$ Bank unless the
context otherwise requires (in which case such reference shall be
deemed to be a reference only to each US$ Bank or to each C$ Bank, as
applicable) and (b) each reference herein to any Bank shall, to the
extent applicable, be deemed to be a reference to any subsidiary,
affiliate, branch or agency of any Bank which is a party to a Foreign
Currency Subfacility.
"Base Rate": at a particular date, the higher of (a) the rate
of interest publicly announced by Chase in New York City from time to
time as its prime rate and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the
rates on overnight federal funds transactions with 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 which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. The prime rate
is not intended to be the lowest rate of interest charged by Chase in
connection with extensions of credit to debtors.
"Base Rate Loans": U.S. Loans at such time as they are made
and/or being maintained at a rate of interest equal to or based upon
the Base Rate.
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"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2, 3.2 or 3.3 as a date on which a Facility
Borrower requests the Banks to make Facility Loans.
"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, provided, that (a) when used in connection
with a Eurodollar Loan with respect to which the Eurodollar Rate is
determined based upon the Telerate screen in accordance with the
definition of Eurodollar Rate, "Business Day" shall mean any Business
Day on which dealings in foreign currencies and exchange between banks
may be carried on in London, England and New York City and (b) when
used in connection with a C$ Loan, "Business Day" shall mean a day on
which banks are open for business in Toronto, Ontario, Canada but
excludes Saturday, Sunday and any other day which is a legal holiday
in Toronto, Ontario, Canada.
"C$ Bank": each Bank designated as a "C$ Bank" on Schedule I,
as such Schedule may be modified from time to time pursuant to
subsection 13.6 or 13.9.
"C$ Commitment Percentage": as to any C$ Bank at any time,
the percentage of the aggregate Canadian Commitments then constituted
by such Bank's Canadian Commitment.
"C$ Loans": the collective reference to C$ Prime Loans and
Bankers' Acceptances. For the purposes of this Agreement, the
principal amount of any C$ Loan constituting a Bankers' Acceptance
shall be deemed to be the face amount of such Bankers' Acceptance.
"C$ Prime Loans": C$ Loans at such time as they bear interest
at a rate based upon the Canadian Prime Rate.
"CAFE": Corporate Average Fuel Economy Standards promulgated
by the United States Department of Transportation.
"Canadian Administrative Agent": Royal, in its capacity as
Canadian administrative agent for the C$ Banks under this Agreement,
together with any of its successors.
"Canadian Calculation Date": the Business Day immediately
preceding the Effective Date and the last Business Day of each
calendar month.
"Canadian Commitment": as to any C$ Bank, its obligation to
make C$ Loans and purchase Bankers' Acceptances, to or from Chrysler
Canada hereunder in an aggregate principal amount (US$ Equivalent) at
any one time outstanding not to exceed the amount (expressed in
Dollars) set forth opposite such Bank's name on Schedule I, as such
amount may be changed from time to time as provided herein.
"Canadian Dollars" or "C$": lawful currency of Canada.
"Canadian Exchange Rate": on a particular date, the rate at
which C$ may be exchanged into Dollars, determined by reference to the
Bank of Canada noon rate as published on the Reuters Screen page BOFC.
In the event that such rate does not appear on such Reuters page, the
"Canadian Exchange Rate" shall be determined by reference to any other
means (as
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selected by the Canadian Administrative Agent) by which such rate is quoted or
published from time to time by the Bank of Canada; provided, that if at the
time of any such determination, for any reason, no such exchange rate is being
quoted or published, the Canadian Administrative Agent may use any reasonable
method as it deems applicable to determine such rate, and such determination
shall be conclusive absent manifest error.
"Canadian Facility Fee": as defined in subsection 4.3(b).
"Canadian Prime Rate": with respect to a C$ Prime Loan, on
any day, the greater of (a) the annual rate of interest announced from
time to time by Royal as its reference rate then in effect for
determining interest rates on C$ denominated commercial loans in
Canada and (b) the annual rate of interest equal to the sum of (i) the
CDOR Rate and (ii) 0.75% per annum.
"Canadian Register": as defined in subsection 13.6(d).
"Canadian Reset Date": as defined in subsection 3.5(a).
"Canadian Utilization": with respect to any Utilization
Period, the percentage equivalent of a fraction (a) the numerator of
which is the average daily principal amount of C$ Loans (US$
Equivalent) outstanding during such Utilization Period and (b) the
denominator of which is the average daily amount of the aggregate
Canadian Commitments of all C$ Banks during such Utilization Period.
"Capital Lease Obligations": of any Person at a particular
time, the obligations of such Person to pay rent and other amounts
under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP.
"Car Rental Operations": collectively, (i) each corporation
substantially all of the assets of which constitute motor vehicles in
daily rental service and (ii) Pentastar.
"CDOR Rate": on any day, the annual rate of interest which is
the rate based on an average 30 day rate applicable to C$ bankers'
acceptances appearing on the "Reuters Screen CDOR Page" (as defined in
the International Swap Dealer Association, Inc. definitions, as
modified and amended from time to time) as of 10:00 A.M., Toronto
time, on such day, or if such day is not a Business Day, then on the
immediately preceding Business Day; provided, however, if such rate
does not appear on the Reuters Screen CDOR Page as contemplated, then
the CDOR Rate on any day shall be calculated as the arithmetic mean of
the 30 day rates applicable to C$ bankers' acceptances quoted by the
Schedule I C$ Reference Banks as of 10:00 A.M., Toronto time, on such
day, or if such day is not a Business Day, then on the immediately
preceding Business Day. If less than all of the Schedule I C$
Reference Banks quote the aforementioned rate on the days and at the
times described above, the "CDOR Rate" shall be such other rate or
rates as the Canadian Administrative Agent and Chrysler Canada may
agree.
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"CFC": Chrysler Financial Corporation, a Michigan
corporation.
"Chartered Bank": a bank named on Schedule I or Schedule II
to the Bank Act (Canada).
"Chrysler Mexican Subsidiary": any Subsidiary of Chrysler
organized under the laws of Mexico.
"Chrysler Technologies": Chrysler Technologies Corporation, a
Michigan corporation.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commercial Bank": (a) with respect to the U.S. Commitments
and the U.S. Loans thereunder, any Person (i) licensed to engage in
commercial banking business and (ii) which on the date it becomes a
Bank (or purchases a participation) hereunder (x) is entitled to
receive payments under this Agreement without deduction or withholding
of any United States federal income taxes and (y) is entitled to an
exemption from, or is not subject to, United States backup withholding
tax and (b) with respect to the Canadian Commitments and the C$ Loans
thereunder, any Chartered Bank which (except in the case of
participations) has a Related US$ Bank.
"Commitment": as to any Bank, the sum of such Bank's U.S.
Commitment and Canadian Commitment.
"Commitment Percentage": as to any Bank at a particular time,
the percentage of the aggregate Commitments then constituted by such
Bank's Commitment.
"Commitment Period": as to the Commitment of any Bank, the
period from and including the Effective Date (or, in the case of any
Assignee which is not already a Bank and any New Bank, from the date
that such Assignee or New Bank becomes a party to this Agreement as
provided in subsection 13.6(c) or 13.9, as the case may be) to but not
including the Termination Date or such earlier date as such Commitment
shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with Chrysler within the
meaning of Section 414(b) or (c) of the Code.
"Company Car Program": the program (or any substantially
similar successor program) in existence on the Effective Date pursuant
to which Chrysler makes motor vehicles available for lease to certain
current and former employees of Chrysler and its subsidiaries.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"D&P": Duff & Phelps Credit Rating Company or its successors.
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"D&P Bond Rating": for any day, the rating of Chrysler's
senior long-term unsecured debt by D&P in effect at 9:00 A.M., New
York City time, on such day. If D&P shall have changed its system of
classifications after the date hereof, the D&P Bond Rating shall be
considered to be at or above a specified level if it is at or above
the new rating which most closely corresponds to the specified level
under the old rating system.
"Default": except as otherwise provided in Section 9(c), any
of the events specified in Section 9, whether or not any requirement
for the giving of notice, the lapse of time, or both, or the happening
of any other condition, has been satisfied.
"Defease" or "Defeasance": with respect to any Bankers'
Acceptance accepted by a C$ Bank, the payment by Chrysler Canada to
such C$ Bank of an amount equal to the aggregate face amount of
Chrysler Canada's obligations pursuant to such Bankers' Acceptance
which amount shall be (a) held by such C$ Bank for application, at the
maturity of such Bankers' Acceptance, to the payment of such C$ Bank's
obligations with respect to such Bankers' Acceptance and (b) invested
by such C$ Bank in bankers' acceptances or cash equivalents reasonably
acceptable to such C$ Bank as directed by Chrysler Canada, provided
that in the case of investments in bankers' acceptances, (i) such
investments shall be available to such C$ Bank on customary terms and
(ii) the amounts and maturities thereof shall be no greater or longer
than the amount and maturity of such Bankers' Acceptance. Each of
Chrysler Canada and each C$ Bank hereby agrees that, upon Chrysler
Canada effecting the Defeasance of any Bankers' Acceptance accepted by
such C$ Bank, Chrysler Canada shall be released from all obligations
to such C$ Bank in any way relating to such Bankers' Acceptance. In
addition, each such C$ Bank agrees that it will, at the maturity of
the applicable Bankers' Acceptance, pay to Chrysler Canada an amount
equal to the income earned by such C$ Bank on any investments made
pursuant to clause (b) of this definition.
"Designated Canadian Commitment Amount": with respect to each
C$ Bank at a particular time, the Designated Canadian Percentage of
such C$ Bank's Canadian Commitment then in effect; provided, that in
the event that C$ Loans shall be outstanding after the Canadian
Commitments shall have been terminated, the "Designated Canadian
Commitment Amount" of such C$ Bank, on any day, shall be deemed to
equal the Designated Canadian Percentage of the aggregate principal
amount of the C$ Loans (US$ Equivalent) made by such C$ Bank
outstanding on such day.
"Designated Canadian Percentage": a percentage which may be
specified by each C$ Bank, and may be changed from time to time, by
written notice to each Facility Borrower and each Agent; provided,
that if no such percentage has been so specified, such percentage
shall be deemed to be zero. Each such notice shall, unless otherwise
agreed by each Facility Borrower, be furnished within a 30-day period
commencing on the Effective Date or commencing on an anniversary of
the Effective Date.
"Dollars" or "$": lawful currency of the United States.
"E-Mail Bank": any Bank that has authorized use of an
electronic mail address as its notice address for the purposes of this
Agreement, as specified in an administrative questionnaire (or other
written notice) delivered to the Administrative Agent and Chrysler,
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provided that such authorization has not subsequently been rescinded pursuant
to a written notice submitted by such Bank to the Administrative Agent and
Chrysler.
"Effective Date": subject to satisfaction of the conditions
set forth in subsection 6.1, April 24, 1997.
"Environmental Laws": any and all Federal, foreign, state,
provincial, local and municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees and requirements of any
Governmental Authority regulating, relating to or imposing liability
or standards of conduct concerning environmental protection matters,
including, without limitation, Hazardous Materials, as now or may at
any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurodollar Loans": U.S. Loans at such time as they are made
and/or being maintained at a rate of interest based upon the
Eurodollar Rate.
"Eurodollar Rate": in the case of any Eurodollar Loan, with
respect to each day during each Interest Period pertaining to such
Eurodollar Loan, the rate of interest determined on the basis of the
rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing
on Page 3750 of the Telerate screen as of 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period,
provided, that in the event that such rate does not appear on Page
3750 of the Telerate Service (or otherwise on such service), the "
Eurodollar Rate" shall be determined by reference to such other
publicly available service for displaying eurodollar rates as
may be agreed upon by the Administrative Agent and Chrysler. In the
absence of such agreement, the "Eurodollar Rate" shall instead be the
rate per annum equal to the average (rounded upward, if necessary, to
the nearest 1/100th of 1%) of the respective rates notified to the
Administrative Agent by each of the Eurodollar Reference Banks as the
rate at which such Eurodollar Reference Bank is offered Dollar deposits
at or about 10:00 A.M., New York City time, two Business Days prior to
the beginning of the relevant Interest Period, in the interbank
eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being
conducted for delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable to the
amount of its Eurodollar Loan to be outstanding during such Interest
Period.
"Eurodollar Reference Banks": Chase, Royal and Credit Suisse
First Boston or such successor bank as shall be chosen in accordance
with subsection 4.7(c).
"Eurodollar Tranche": the collective reference to Eurodollar
Loans whose Interest Periods begin on the same date and end on the
same later date (whether or not such Eurodollar Loans originally were
made on the same day).
"Eurostar": Eurostar Automobilwerk Gesellschaft mbH & Co.
K-G, an Austrian corporation.
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"Event of Default": except as otherwise provided in Section
9(c), any of the events specified in Section 9, provided that any
requirement for the giving of notice, the lapse of time, or both, or
the happening of any other condition, has been satisfied.
"Excess U.S. Utilization Period": any Utilization Period with
respect to which the U.S. Utilization exceeds 50%.
"Excluded Subsidiaries": Chrysler Technologies, each of its
subsidiaries, CFC, each of its subsidiaries, each Receivable Finance
Company and the Car Rental Operations.
"Existing Credit Agreement": the Revolving Credit Agreement
dated as of April 26, 1996 among Chrysler, Chrysler Canada, the banks
parties thereto, Royal, as Canadian administrative agent and Chase, as
administrative agent.
"Facility Borrowers": the collective reference to Chrysler
and Chrysler Canada.
"Facility Fee": any U.S. Facility Fee or Canadian Facility
Fee.
"Facility Fee Rate": for any day, the rate per annum set
forth below opposite the Status in effect on such day:
Facility Fee
Status Rate
------ ------------
Level I Status 0.0700%
Level II Status 0.0800%
Level III Status 0.1100%
Level IV Status 0.1500%
Level V Status 0.2000%
"Facility Loans": the collective reference to the U.S. Loans
and the C$ Loans.
"Federal Funds Effective Rate": as defined in the definition
of Base Rate.
"Final Date": the later of (a) the Termination Date and (b)
the date on which all of the Loans shall have been paid in full.
"Fitch": Fitch Investors Service, Inc. or its successors.
"Fitch Bond Rating": for any day, the rating of Chrysler's
senior long-term unsecured debt by Fitch in effect at 9:00 A.M., New
York City time, on such day. If Fitch shall have changed its system
of classifications after the date hereof, the Fitch Bond Rating shall
be
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considered to be at or above a specified level if it is at or
above the new rating which most closely corresponds to the specified
level under the old rating system.
"Foreign Borrowers": the collective reference to (a) the
Foreign Subsidiary Borrowers and (b) if applicable, Chrysler in its
capacity as a borrower under any Foreign Currency Subfacility.
"Foreign Calculation Date": the last Business Day of each
calendar month.
"Foreign Committed Subfacility": any Foreign Currency
Subfacility designated as a "Foreign Committed Subfacility" pursuant
to the relevant Foreign Currency Subfacility Addendum.
"Foreign Currency": Dollars and any currency other than
Dollars as to which a Foreign Exchange Rate may be calculated.
"Foreign Currency Loans": any loan made pursuant to a Foreign
Currency Subfacility.
"Foreign Currency Subfacility": any credit facility providing
for borrowings in a Foreign Currency which has been designated as a
"Foreign Currency Subfacility" pursuant to a Foreign Currency
Subfacility Addendum.
"Foreign Currency Subfacility Addendum": a Foreign Currency
Subfacility Addendum substantially in the form of Exhibit F-2 and
conforming to the requirements of Section 11.
"Foreign Currency Subfacility Maximum Borrowing Amount": as
defined in subsection 11.1(b).
"Foreign Exchange Rate": with respect to any Foreign Currency
(other than Dollars) on a particular date, the rate at which such
Foreign Currency may be exchanged into Dollars, equal to the average
(rounded upward, if necessary, to the nearest 1/100th of 1%) of the
respective rates notified to the Administrative Agent by each of the
Foreign Exchange Reference Banks as the spot rate of exchange in the
interbank market where its foreign currency exchange operations in
respect of such Foreign Currency are then being conducted, at or about
12:00 noon, local time, at such date for the purchase of Dollars with
such Foreign Currency, for delivery two Banking Days later; provided,
that if at the time of any such determination, for any reason, no such
spot rate is being quoted by the Foreign Exchange Reference Banks, the
Administrative Agent may use any reasonable method as it deems
applicable to determine such rate, and such determination shall be
conclusive absent manifest error.
"Foreign Exchange Reference Banks": the collective reference
to Chase, Royal and Credit Suisse First Boston or such successor bank
as shall be chosen in accordance with subsection 4.7(c).
"Foreign Reset Date": as defined in subsection 11.2(a).
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"Foreign Subsidiary": any Subsidiary that (a) is organized
under the laws of any jurisdiction outside the United States of
America, Puerto Rico and Canada, or (b) conducts the major portion of
its business outside the United States of America, Puerto Rico and
Canada.
"Foreign Subsidiary Borrower": any Subsidiary which is a
borrower under a Foreign Currency Subfacility.
"Foreign Uncommitted Subfacility": any Foreign Currency
Subfacility designated as a "Foreign Uncommitted Subfacility" pursuant
to the relevant Foreign Currency Subfacility Addendum.
"GAAP": generally accepted accounting principles in the
United States of America and, to the extent applicable, Canada, in
effect from time to time, except that for purposes of determining
compliance with the covenants set forth in subsections 8.1 and 8.2(n),
"GAAP" shall mean generally accepted accounting principles in the
United States of America ("U.S. GAAP") and, to the extent applicable,
Canada, in effect on December 31, 1996 applied, in the case of U.S.
GAAP, consistently with those used in compiling the audited financial
statements referred to in subsection 5.1.
"Governmental Authority": any nation or government, any
state, province or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guaranty": any guaranty by any Person of Indebtedness or
other obligations of any other Person or any assurance with respect to
the financial condition of any other Person (including, without
limitation, any purchase or repurchase agreement, any indemnity or any
keep-well, take-or-pay, through-put or other arrangement having the
effect of assuring or holding harmless any third Person against loss
with respect to any Indebtedness or other obligation of such other
Person) except indorsements of negotiable instruments for collection
in the ordinary course of business.
"Hazardous Materials": any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances,
petroleum products (including crude oil or any fraction thereof),
defined or regulated as such in or under any Environmental Law.
"Indebtedness": as applied to any Person, without
duplication: (a) any indebtedness of such Person or any of its
Subsidiaries for borrowed money or for the deferred purchase price of
property or services, (b) any withdrawal obligation of such Person or
any of its Subsidiaries to a Multiemployer Plan, (c) all Capital Lease
Obligations of such Person and its Subsidiaries, (d) all liabilities
of the types described in clauses (a) through (c) of this definition
entitled to the benefits of any Guaranty by such Person or any of its
Subsidiaries and (e) all liabilities secured by any Lien on any
property owned by such Person or any of its Subsidiaries even though
such Person or such Subsidiary has not assumed or otherwise become
liable for the payment thereof, in each case to be determined on a
consolidated basis in accordance with GAAP; provided, however, that
the term "Indebtedness" shall not include short-term obligations
(including Guaranties in respect thereof) payable to suppliers
incurred in the ordinary course of business; and provided,
further, that for purposes of subsection 8.1, "Indebtedness" shall
include
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obligations of the types described in clauses (a) through (e) of
this definition of Chrysler Technologies and its subsidiaries.
"Initial Offered Canadian Commitment Amount": with respect to
each C$ Bank, the amount specified opposite such Bank's name on
Schedule I in the column captioned "Initial Offered Canadian
Commitment Amount", which amount shall equal the commitment amount
offered by such Bank in connection with the initial syndication of the
Canadian Commitments.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months thereafter,
as selected by Chrysler in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months thereafter,
as selected by Chrysler by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
provided, that the foregoing provisions are subject to the following:
(A) if any Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(B) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(C) any Interest Period that would otherwise extend
beyond the Termination Date shall end on the Termination Date.
"Level": any of Level I, Level II, Level III, Level IV or
Level V.
"Level I": (i) an S&P Bond Rating of A or better, (ii) a
Moody's Bond Rating of A2 or better, (iii) a D&P Bond Rating of A or
better and (iv) a Fitch Bond Rating of A or better.
"Level II": (i) an S&P Bond Rating of A-, (ii) a Moody's Bond
Rating of A3, (iii) a D&P Bond Rating of A- and (iv) a Fitch Bond
Rating of A-.
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"Level III": (i) an S&P Bond Rating of BBB+ or BBB, (ii) a
Moody's Bond Rating of Baa1 or Baa2, (iii) a D&P Bond Rating of BBB+
or BBB and (iv) a Fitch Bond Rating of BBB+ or BBB.
"Level IV": (i) an S&P Bond Rating of BBB-, (ii) a Moody's
Bond Rating of Baa3, (iii) a D&P Bond Rating of BBB- and (iv) a Fitch
Bond Rating of BBB-.
"Level V": (i) an S&P Bond Rating of BB+ (or lower ) or
unrated, (ii) a Moody's Bond Rating of Ba1 (or lower) or unrated,
(iii) a D&P Bond Rating of BB+ (or lower) or unrated and (iv) a Fitch
Bond Rating of BB+ (or lower) or unrated.
"Lien": (a) any judgment lien or execution, attachment, levy,
distraint or similar legal process or (b) any mortgage, pledge,
hypothecation, assignment, lien, charge, encumbrance or other security
interest of any kind or nature whatsoever (including, without
limitation, the interest of the lessor under any capital lease and the
interest of the seller under any conditional sale or other title
retention agreement), which secures or purports to secure any
Indebtedness or other indebtedness or obligations.
"Loans": the collective reference to the Facility Loans and the
Foreign Currency Loans.
"Moody's": Moody's Investors Service, Inc. or its successors.
"Moody's Bond Rating": for any day, the rating of Chrysler's
senior long-term unsecured debt by Moody's in effect at 9:00 A.M., New
York City time, on such day. If Moody's shall have changed its system
of classifications after the date hereof, the Moody's Bond Rating
shall be considered to be at or above a specified level if it is at or
above the new rating which most closely corresponds to the specified
level under the old rating system.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New Bank": as defined in subsection 13.9.
"New Venture Gear": New Venture Gear, Inc., a Delaware
corporation.
"Other Taxes": as defined in the definition of "Taxes".
"Pentastar": Pentastar Transportation Group, Inc., an
Oklahoma corporation.
"Permitted Encumbrances": (a) Liens for taxes not yet due or
which are being contested in good faith by appropriate actions,
provided that adequate reserves with respect thereto are maintained on
the books of Chrysler in conformity with GAAP, (b) landlords',
carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate actions and (c) easements,
rights-of-way, restrictions and other similar encumbrances incurred in
the ordinary course of business
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which, in the aggregate, are not substantial in amount in
relation to the value of the property subject thereto and which do not
in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the
business of Chrysler.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which Chrysler or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
such term is defined in Section 3(5) of ERISA.
"Rating Agencies": the collective reference to D&P, Fitch,
Moody's and S&P.
"Receivable Finance Company": any corporation substantially
all of the assets of which constitute receivables arising out of the
making of loans to Persons to finance the acquisition of tangible
property.
"Reference Banks": the collective reference to the Eurodollar
Reference Banks, the Foreign Exchange Reference Banks, the Schedule I
C$ Reference Banks and the Schedule II C$ Reference Banks.
"Registers": the collective reference to the U.S. Register and
the Canadian Register.
"Regulation G": Regulation G of the Board of Governors of the
Federal Reserve System, as from time to time in effect.
"Regulation T": Regulation T of the Board of Governors of the
Federal Reserve System, as from time to time in effect.
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System, as from time to time in effect.
"Regulation X": Regulation X of the Board of Governors of the
Federal Reserve System, as from time to time in effect.
"Related C$ Bank": as defined in the definition of "US$ Bank
Combined Commitment".
"Related US$ Bank": as defined in the definition of "US$ Bank
Combined Commitment".
"Required Banks": at a particular time, Banks having at least
51% of the aggregate amount of the Commitments at such time or, if the
Commitments have expired or been terminated or for purposes of
determining whether to accelerate the Loans pursuant to Section
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9, Banks holding at least 51% of the outstanding principal
amount of the Loans (US$ Equivalent).
"Required Canadian Banks": at any date, C$ Banks having at
least 51% of the aggregate amount of the Canadian Commitments at such
date.
"Required U.S. Banks": at any date, US$ Banks having at least
51% of the aggregate amount of the U.S. Commitments at such date.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": at a particular time, the Chief
Financial Officer, the Treasurer or the Controller of Chrysler or
Chrysler Canada, as the case may be. Each certificate furnished by a
Responsible Officer hereunder shall be treated as a certificate on
behalf of the relevant Facility Borrower and no Responsible Officer
shall have any personal liability in connection therewith.
"S&P": Standard & Poor's Ratings Services or its successors.
"S&P Bond Rating": for any day, the rating of Chrysler's
senior long-term unsecured debt by S&P in effect at 9:00 A.M., New
York City time, on such day. If S&P shall have changed its system of
classifications after the date hereof, the S&P Bond Rating shall be
considered to be at or above a specified level if it is at or above
the new rating which most closely corresponds to the specified level
under the old rating system.
"Schedule I C$ Bank": any C$ Bank named on Schedule I to the
Bank Act (Canada).
"Schedule I Reference C$ Banks": the collective reference to
Royal, The Bank of Nova Scotia and Canadian Imperial Bank of Commerce.
"Schedule II C$ Bank": any C$ Bank named on Schedule II to
the Bank Act (Canada).
"Schedule II Reference C$ Banks": the collective reference to
The Chase Manhattan Bank of Canada, ABN Amro Bank Canada and Morgan
Bank of Canada.
"Status": as to Chrysler, the existence of Level I, Level II,
Level III, Level IV or Level V, as the case may be. For the purposes
of this definition, "Status" will be set at the lowest Level
assigned to Chrysler by any Rating Agency, unless only one Rating
Agency has assigned such Level to Chrysler, in which case the Status
will be set at the second lowest Level assigned to Chrysler by any
Rating Agency. Level I shall be deemed to be the highest Level and
Level V shall be deemed to be the lowest Level.
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"Subsidiary": at a particular time, any corporation that
would then be required to be included as a consolidated subsidiary of
Chrysler in the financial statements contained in an annual report
prepared by Chrysler on Form 10-K pursuant to the Securities Exchange
Act of 1934, as amended, provided that no Excluded Subsidiary shall be
or, for any reason, become a Subsidiary for purposes of this
Agreement. "Significant Subsidiary" shall mean, at a particular time,
Chrysler Canada, Chrysler de Mexico, S.A. and any other Subsidiary the
assets of which then constitute at least 10% of the consolidated
assets of Chrysler and its Subsidiaries. "Wholly-owned Subsidiary"
shall mean any Subsidiary at least 90% of whose capital stock having
ordinary voting power for the election of directors is owned, directly
or indirectly, by Chrysler.
"Subsidiary Borrowers": the collective reference to Chrysler
Canada and the Foreign Subsidiary Borrowers.
"Subsidiary Borrower Obligations": with respect to each
Subsidiary Borrower, the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans made to such Subsidiary Borrower and interest accruing
after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to such
Subsidiary Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans made
to such Subsidiary Borrower and all other obligations and liabilities
of such Subsidiary Borrower to any Agent or to any Bank, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, this Agreement, any Foreign Currency Subfacility
or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees, charges and disbursements of counsel to any
Agent or to any Bank that are required to be paid by such Subsidiary
Borrower pursuant to this Agreement or any Foreign Currency
Subfacility) or otherwise.
"Taxes": all net income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, imposed,
levied, collected, withheld or assessed by any country (or by any
political subdivision or taxing authority thereof or therein),
excluding, with respect to any Bank, net income taxes, franchise taxes
imposed in lieu of net income taxes, and Canadian capital and large
corporations taxes, in each case imposed by any country (or any
political subdivision or taxing authority thereof or therein) where
such Bank is organized or, in respect of such Bank's Eurodollar Loans,
by the country (or any political subdivision or tax authority thereof
or therein) where such Bank's Eurodollar Loans are booked and, in
respect of such Bank's Base Rate Loans, by the country (or any
political subdivision or tax authority thereof or therein) where such
Bank's Base Rate Loans are booked (such excluded taxes, "Other
Taxes").
"Termination Date": April 24, 2002, or such earlier date as
the Commitments shall terminate as provided herein.
"Total Capitalization": the sum of Indebtedness and Total
Shareholders' Equity.
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"Total Shareholders' Equity": the sum of (i) the par value
(or stated value on the books of Chrysler) of the capital stock of
Chrysler, (ii) the par value (or stated value on the books of
Chrysler) of the preferred stock of Chrysler, (iii) the aggregate
amount of additional paid-in capital of Chrysler and (iv) retained
earnings (or minus accumulated deficit) of Chrysler less (v) treasury
stock (at cost) of Chrysler, each of clauses (i) through (v) of this
definition determined in accordance with GAAP and, to the extent not
inconsistent with GAAP, in accordance with Chrysler's past practices.
"Type": as to any U.S. Loan, its nature as a Base Rate Loan
or a Eurodollar Loan.
"US$ Bank": each Bank designated as a "US$ Bank" on Schedule
I, as such Schedule may be modified from time to time pursuant to
subsection 13.6 or 13.9.
"US$ Bank Combined Commitment": as to any US$ Bank, the sum
of (a) such Bank's U.S. Commitment and (b) if such Bank has a Related
C$ Bank, such Related C$ Bank's Canadian Commitment; provided, that in
the event that Loans shall be outstanding after the Commitments shall
have been terminated, the "US$ Bank Combined Commitment" of each US$
Bank, on any day, shall be deemed to equal the aggregate principal
amount of the Loans (US$ Equivalent) made by such Bank (or, if
applicable, such Bank's Related C$ Bank) outstanding on such day. For
the purposes of this Agreement, (i) " Related C$ Bank" means, with
respect to any US$ Bank, as applicable, either (x) such Bank in
its capacity as a C$ Bank or (y) any subsidiary, affiliate, branch or
agency of such Bank which is a C$ Bank and (ii) "Related US$ Bank"
means, with respect to any C$ Bank, as applicable, either (x) such Bank
in its capacity as a US$ Bank or (y) any subsidiary, affiliate, branch
or agency of such Bank which is a US$ Bank. The entry by any US$ Bank
into any Foreign Currency Subfacility shall have no effect on the
amount of the US$ Bank Combined Commitment of such Bank.
"US$ Bank Net Combined Commitment": with respect to each US$
Bank, an amount equal to such US$ Bank's US$ Bank Combined Commitment
minus, in the case of each US$ Bank that has a Related C$ Bank, such
Related C$ Bank's Designated Canadian Commitment Amount.
"US$ Equivalent": on any date of determination, with respect
to any amount in Canadian Dollars or any Foreign Currency, the
equivalent in Dollars of such amount, determined by the relevant Agent
using the Canadian Exchange Rate or the Foreign Exchange Rate, as
applicable, then in effect with respect thereto as determined pursuant
to subsection 3.5 or Section 11, respectively.
"U.S. Commitment": as to any US$ Bank, its obligation to make
U.S. Loans 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, as such amount may be reduced or increased as
provided herein.
"U.S. Commitment Percentage": as to any US$ Bank at any time,
the percentage of the aggregate U.S. Commitments then constituted by
such Bank's U.S. Commitment.
"U.S. Facility Fee": as defined in subsection 4.3(a).
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"U.S. Net Commitment": at any date, with respect to any US$
Bank, the excess of (a) the U.S. Commitment of such Bank on such date
over (b) the Aggregate Foreign Extensions of Credit of such Bank on
such date.
"U.S. Loans": as defined in subsection 2.1(a).
"U.S. Register": as defined in subsection 13.6(d).
"U.S. Utilization": for any Utilization Period, with respect
to the U.S. Commitments, the percentage equivalent of a fraction (a)
the numerator of which is the average daily principal amount of U.S.
Loans outstanding during such Utilization Period and (b) the
denominator of which is the average daily amount of the aggregate U.S.
Net Commitments of all US$ Banks during such Utilization Period.
"Utilization Period": (a) each fiscal quarter of Chrysler and
(b) any portion of a fiscal quarter of Chrysler ending on the Final
Date.
1.2 Other Definitional Provisions. (a) All terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to Chrysler 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. The covenant contained in subsection 5.1
that the financial statements furnished to the Banks for the first three
quarterly periods of each fiscal year of Chrysler be prepared in accordance
with GAAP shall not be construed to mean that the technical presentation of
such financial statements need be in accordance with GAAP, so long as the
presentation (with respect to such matters as the presence or absence of
footnotes, captions and the like) of such financial statements is in accordance
with the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
SECTION 2. THE U.S. COMMITMENTS
2.1 The U.S. Commitments. (a) Subject to the terms and
conditions hereof, each US$ Bank severally agrees to make revolving credit
loans ("U.S. Loans") to Chrysler from time to time during the Commitment
Period. During the Commitment Period, Chrysler may use the U.S. Commitment of
each US$ Bank by borrowing, prepaying or repaying the U.S. Loans of such Bank
in whole or in part and reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary contained in this
Agreement, in no event may U.S. Loans be borrowed under this subsection 2.1 if,
after giving effect thereto and the application of the proceeds
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thereof, the aggregate principal amount of U.S. Loans made by any US$ Bank then
outstanding would exceed such Bank's U.S. Net Commitment.
(b) U.S. Loans may be Base Rate Loans or Eurodollar Loans, or
any combination thereof, as determined by Chrysler and notified to the
Administrative Agent in accordance with subsection 2.3, provided that no
Eurodollar Loans shall be made during any period commencing with the day
following the day that is one month prior to the Termination Date and ending on
the Termination Date.
2.2 Procedure for U.S. Loan Borrowing. Chrysler may
borrow under the U.S. Commitments during the Commitment Period on any Business
Day, provided, that Chrysler 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, (i) three Business Days prior to the requested
Borrowing Date, in the case of Eurodollar Loans and (ii) two Business Days
prior to the requested Borrowing Date, in the case of Base Rate Loans)
specifying (A) the amount to be borrowed, (B) the requested Borrowing Date, (C)
whether the borrowing is to be of Eurodollar Loans or Base Rate Loans and (D)
if the borrowing is to be of Eurodollar Loans, the duration of the Interest
Period with respect thereto. Upon receipt of such notice the Administrative
Agent shall promptly notify each US$ Bank thereof. Not later than 12:00 noon,
New York City time, on the Borrowing Date specified in such notice, each US$
Bank shall make an amount equal to the amount of the U.S. Loan to be made by
such Bank available to the Administrative Agent for the account of Chrysler at
the office of the Administrative Agent specified in subsection 13.2 in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to Chrysler by the Administrative Agent crediting the account of
Chrysler on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the US$ Banks and in like funds as
received by the Administrative Agent. Each borrowing of Base Rate Loans shall
be in an aggregate principal amount not less than the lesser of (i) $25,000,000
and (ii) the then aggregate Available U.S. Commitments. Each borrowing of
Eurodollar Loans shall be in an aggregate principal amount not less than
$25,000,000.
2.3 Conversion and Continuation Options. (a) Chrysler
may elect from time to time to convert Eurodollar Loans to Base Rate Loans by
giving the Administrative Agent at least two Business Days' prior irrevocable
notice of such election, provided that any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto.
Chrysler may elect from time to time to convert Base Rate Loans to Eurodollar
Loans by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each US$ Bank thereof. All or any part of
outstanding Eurodollar Loans and/or Base Rate Loans may be converted as
provided herein, provided that (i) no Base Rate Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and
the Administrative Agent has or the Required US$ Banks have determined in its
or their sole discretion not to permit such a conversion and (ii) no Base Rate
Loan may be converted into a Eurodollar Loan after the date that is one month
prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by Chrysler
giving irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection
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1.1, of the length of the next Interest Period to be applicable to such
Eurodollar Loans, provided that no Eurodollar Loan may be continued as such (i)
when any Event of Default has occurred and is continuing and the Administrative
Agent has or the Required US$ Banks have determined in its or their sole
discretion not to permit such a continuation or (ii) after the date that is one
month prior to the Termination Date and provided, further, that if Chrysler
shall fail to give such notice or if such continuation is not permitted such
Eurodollar Loans shall be automatically converted to Base Rate Loans on the
last day of such then expiring Interest Period. Upon receipt of any notice
from Chrysler pursuant to this paragraph (b), the Administrative Agent shall
promptly notify each US$ Bank thereof.
(c) Notwithstanding anything to the contrary in this
subsection 2.3, all continuations and conversions hereunder shall be in such
amounts so that, after giving effect thereto, the aggregate principal amount of
the Eurodollar Loans comprising any Eurodollar Tranche shall not be less than
$25,000,000.
2.4 Certain Matters Relating to Eurodollar Loans. (a)
In the event that (i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon Chrysler) that by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate applicable pursuant to
subsection 4.2(a) or (ii) the Required U.S. Banks shall have determined (which
determination shall be conclusive and binding upon Chrysler) and shall notify
the Administrative Agent that the Eurodollar Rate applicable pursuant to
subsection 4.2(a) does not adequately cover the cost to the US$ Banks of making
or maintaining Eurodollar Loans, the Administrative Agent shall forthwith give
telecopy notice of such determination to Chrysler and the US$ Banks at least
one Business Day prior to the first day of the proposed Interest Period for
such Eurodollar Loans. If such notice is given (x) any Eurodollar Loans
requested to be made or continued on the first day of such Interest Period
shall be made as or converted into Base Rate Loans and (y) any US$ Loans that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be continued as Base Rate Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans shall
be made or continued as such, nor shall Chrysler have the right to convert Base
Rate Loans to Eurodollar Loans.
(b) Upon notice from any Affected Bank (as hereinafter
defined), Chrysler shall pay to the Administrative Agent for the account of
such Affected Bank an additional amount for each Eurodollar Loan of such
Affected Bank, payable on the last day of the Interest Period with respect
thereto, equal to
P X [[R / (1.00 - r)] - R] X [T / 360]
Where P = the principal amount of such Eurodollar Loan of such Bank;
R = the Eurodollar Rate (expressed as a decimal) for such
Interest Period;
T = the number of days in such Interest Period during
which such Bank was an "Affected Bank"; and
r = the aggregate of rates (expressed as a decimal) of
reserve requirements ("Reserve Requirements") current
on the date two Business Days prior to the beginning
of such Interest Period (including, without
limitation, basic,
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supplemental, marginal and emergency reserves)
under any regulations of the Federal Reserve Board or
other Governmental Authority having jurisdiction with
respect thereto, as now and from time to time
hereafter in effect, dealing with reserve requirements
prescribed for eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in
Regulation D of the Federal Reserve Board) maintained
by a member bank of the Federal Reserve System.
The term "Affected Bank" shall mean any US$ Bank party to this
Agreement that (i) is (x) organized under the laws of the United States or any
State thereof or (y) a bank organized under laws other than those of the United
States of America or a State thereof that is funding its Eurodollar Loans
through a branch or agency located in the United States of America and (ii) is
subject to actual Reserve Requirements in respect of its Eurodollar Loans.
Each US$ Bank agrees to notify the Administrative Agent promptly upon becoming
an Affected Bank, and of any subsequent change of status, disclosing the
effective date of such change.
(c) Upon the occurrence of any of the events specified in
subsection 2.4(a), each US$ Bank whose Eurodollar Loans are affected by any
such event agrees that it will transfer its Eurodollar Loans affected by any
such event to another branch office (or, if such Bank so elects, to an
affiliate) of such Bank, provided that such transfer shall be made only if such
Bank shall have determined in good faith (which determination shall, absent
manifest error, be final, conclusive and binding upon all parties) that, (i) on
the basis of existing circumstances, such transfer will avoid such events and
will not result in any additional costs, liabilities or expenses to such Bank
or to Chrysler and (ii) such transfer is otherwise consistent with the
interests of such Bank.
SECTION 3. THE CANADIAN COMMITMENTS
3.1 The Canadian Commitments. (a) Subject to the terms and
conditions hereof, each C$ Bank severally agrees to make revolving credit loans
(which shall be C$ Prime Loans) to, and to accept Bankers' Acceptances from,
Chrysler Canada from time to time during the Commitment Period. During the
Commitment Period, Chrysler Canada may use the Canadian Commitment of each C$
Bank by borrowing, prepaying or repaying the C$ Prime Loans or Bankers'
Acceptances of such Bank, in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. Notwithstanding anything to
the contrary contained in this Agreement, in no event may C$ Prime Loans or
Bankers' Acceptances be borrowed or issued under this subsection 3.1 if, after
giving effect thereto and the application of the proceeds thereof, the
Aggregate Canadian Extensions of Credit of any C$ Bank then outstanding would
exceed such C$ Bank's Canadian Commitment.
3.2 Procedure for C$ Prime Loan Borrowing. Chrysler Canada
may borrow C$ Prime Loans during the Commitment Period on any Business Day,
provided that Chrysler Canada shall give the Canadian Administrative Agent
irrevocable notice (which notice must be received by the Canadian
Administrative Agent prior to 10:30 A.M., Toronto time, one Business Day prior
to the requested Borrowing Date, specifying (a) the amount to be borrowed and
(b) the requested Borrowing Date. Upon receipt of such notice, the Canadian
Administrative Agent shall promptly notify each C$ Bank thereof. Not later
than 10:30 A.M., Toronto time, on the Borrowing Date specified in such notice,
each C$ Bank shall make the amount of its share of such borrowing available to
the Canadian Administrative Agent for the account of Chrysler Canada at the
office of the Canadian Administrative Agent specified in subsection 13.2 and in
funds immediately available to the Canadian Administrative
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Agent. Each borrowing pursuant to this subsection 3.2 shall be in an aggregate
principal amount of the lesser of (i) C$5,000,000 or an integral multiple of
C$100,000 in excess thereof or (ii) the amount in C$ which has a US$ Equivalent
equal to the then aggregate Available Canadian Commitments.
3.3 Bankers' Acceptances. (a) Chrysler Canada may issue
Bankers' Acceptances denominated in C$, for purchase by the C$ Banks, each in
accordance with the provisions of this subsection 3.3.
(b) Procedures.
(1) Notice. Chrysler Canada shall notify the Canadian
Administrative Agent by irrevocable written notice by 10:00 A.M.,
Toronto time, one Business Day prior to the Borrowing Date in respect
of any borrowing by way of Bankers' Acceptances.
(2) Minimum Borrowing Amount. Each borrowing by way of
Bankers' Acceptances shall be in a minimum aggregate face amount of
C$10,000,000.
(3) Face Amounts. The face amount of each Bankers'
Acceptance shall be C$100,000 or any integral multiple thereof.
(4) Term. Bankers' Acceptances shall be issued and shall
mature on a Business Day. Each Bankers' Acceptance shall have a term
of at least 30 days and not more than 365 days excluding days of grace
and shall mature on or before the Termination Date and shall be in
form and substance reasonably satisfactory to each C$ Bank.
(5) Bankers' Acceptances in Blank. To facilitate the
acceptance of Bankers' Acceptances under this Agreement, Chrysler
Canada shall, upon execution of this Agreement and from time to time
as required, provide to the Canadian Administrative Agent drafts, in
form satisfactory to the Canadian Administrative Agent, duly executed
and endorsed in blank by Chrysler Canada in quantities sufficient for
each C$ Bank to fulfill its obligations hereunder. In addition,
Chrysler Canada hereby appoints each C$ Bank as its attorney to sign
and endorse on its behalf, in handwriting or by facsimile or
mechanical signature as and when deemed necessary by such C$ Bank,
blank forms of Bankers' Acceptances. Chrysler Canada recognizes and
agrees that all Bankers' Acceptances signed and/or endorsed on its
behalf by a C$ Bank shall bind Chrysler Canada as fully and
effectually as if signed in the handwriting of and duly issued by the
proper signing officers of Chrysler Canada. Each C$ Bank is hereby
authorized to issue such Bankers' Acceptances endorsed in blank in
such face amounts as may be determined by such Bank provided that the
aggregate amount thereof is equal to the aggregate amount of Bankers'
Acceptances required to be accepted by such Bank. No C$ Bank shall be
responsible or liable for its failure to accept a Bankers' Acceptance
if the cause of such failure is, in whole or in part, due to the
failure of Chrysler Canada to provide duly executed and endorsed
drafts to the Canadian Administrative Agent on a timely basis nor
shall any C$ Bank be liable for any damage, loss or other claim
arising by reason of any loss or improper use of any such instrument
except loss or improper use arising by reason of the gross negligence
or willful misconduct of such Bank, its officers, employees, agents or
representatives. Each C$ Bank shall maintain a record with respect to
Bankers' Acceptances (i) received by it from the Canadian
Administrative Agent in blank hereunder, (ii) voided by it for
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any reason, (iii) accepted by it hereunder, (iv) purchased by it
hereunder and (v) cancelled at their respective maturities. Each C$
Bank further agrees to retain such records in the manner and for the
statutory periods provided in the various Canadian provincial or
federal statutes and regulations which apply to such Bank.
(6) Execution of Bankers' Acceptances. Drafts of Chrysler
Canada to be accepted as Bankers' Acceptances hereunder shall be duly
executed on behalf of Chrysler Canada. Notwithstanding that any
person whose signature appears on any Bankers' Acceptance as a
signatory for Chrysler Canada may no longer be an authorized signatory
for Chrysler Canada at the date of issuance of a Bankers' Acceptance,
such signature shall nevertheless be valid and sufficient for all
purposes as if such authority had remained in force at the time of
such issuance and any such Bankers' Acceptance so signed shall be
binding on Chrysler Canada.
(7) Issuance of Bankers' Acceptances. Promptly following
receipt of a notice of borrowing by way of Bankers' Acceptances, the
Canadian Administrative Agent shall so advise the C$ Banks and shall
advise each C$ Bank of the face amount of each Bankers' Acceptance to
be accepted by it and the term thereof. The aggregate face amount of
Bankers' Acceptances to be accepted by a C$ Bank shall be determined
by the Canadian Administrative Agent by reference to the respective
Canadian Commitments of the C$ Banks, except that, if the face amount
of a Bankers' Acceptance, which would otherwise be accepted by a C$
Bank, would not be C$100,000 or an integral multiple thereof, such
face amount shall be increased or reduced by the Canadian
Administrative Agent in its sole and unfettered discretion to the
nearest integral multiple of C$100,000.
(8) Acceptance of Bankers' Acceptances. Each Bankers'
Acceptance to be accepted by a C$ Bank shall be accepted at such
Bank's office referred to in its Addendum.
(9) Purchase of Bankers' Acceptances. On the relevant
Borrowing Date, each C$ Bank shall purchase from Chrysler Canada, at
the Applicable BA Discount Rate, any Bankers' Acceptance accepted by
it and provide to the Canadian Administrative Agent the BA Discount
Proceeds for the account of Chrysler Canada. The Acceptance Fee
payable by Chrysler Canada to such Bank under subsection 3.3(d) in
respect of each Bankers' Acceptance accepted and purchased by such
Bank shall be set off against the BA Discount Proceeds payable by such
Bank under this subsection 3.3(b)(9).
(10) Sale of Bankers' Acceptances. Each C$ Bank may at any
time and from time to time hold, sell, rediscount or otherwise dispose
of any or all Bankers' Acceptances accepted and purchased by it.
(11) Waiver of Presentment and Other Conditions. Chrysler
Canada waives presentment for payment and any other defense to payment
of any amounts due to a C$ Bank in respect of a Bankers' Acceptance
accepted by it pursuant to this Agreement which might exist solely by
reason of such Bankers' Acceptance being held, at the maturity
thereof, by such Bank in its own right and Chrysler Canada agrees not
to claim any days of grace if such Bank as holder sues Chrysler Canada
on the Bankers' Acceptances for payment of the amount payable by
Chrysler Canada thereunder.
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(c) With respect to each Bankers' Acceptance, Chrysler
Canada shall give irrevocable telephone or written notice (or such other method
of notification as may be agreed upon between the Canadian Administrative Agent
and Chrysler Canada) to the Canadian Administrative Agent at or before 2:00
P.M., Toronto time, two Business Days prior to the maturity date of such
Bankers' Acceptance followed by written confirmation electronically transmitted
to the Canadian Administrative Agent on the same day, of Chrysler Canada's
intention to issue a Bankers' Acceptance on such maturity date (a "Refunding
Bankers' Acceptance") to provide for the payment of such maturing Bankers'
Acceptance (it being understood that payments by Chrysler Canada and fundings
by the C$ Banks in respect of each maturing Bankers' Acceptance and the related
Refunding Bankers' Acceptance shall be made on a net basis reflecting the
difference between the face amount of such maturing Bankers' Acceptance and the
BA Discount Proceeds (net of the applicable Acceptance Fee) of such Refunding
Bankers' Acceptance). Any repayment of Bankers' Acceptances must be made at or
before 12:00 noon, Toronto time, on the respective maturity dates of such
Bankers' Acceptances. If Chrysler Canada fails to give such notice, Chrysler
Canada shall be deemed to have repaid such maturing Bankers' Acceptances with
funds obtained by way of C$ Prime Loans commencing on the maturity date of such
maturing Bankers' Acceptances.
(d) An Acceptance Fee shall be payable by Chrysler Canada to
each C$ Bank in advance (in the manner specified in subsection 3.3(b)(9)) upon
the issuance of a Bankers' Acceptance to be accepted by such Bank calculated at
the rate per annum equal to the Applicable Margin, such Acceptance Fee to be
calculated on the face amount of such Bankers' Acceptance and to be computed on
the basis of the number of days in the term of such Bankers' Acceptance.
Subject to the additional amounts payable under subsection 3.3(e), the amount
of Acceptance Fees to be paid as specified above shall be the amount which
would be due and payable if the Canadian Utilization for the term of the
relevant Bankers' Acceptance was less than 50%.
(e) On the first Business Day following the last day of each
Utilization Period, Chrysler Canada shall pay to the Canadian Administrative
Agent, for the ratable benefit of the C$ Banks an additional amount on account
of Acceptance Fees in respect of each Bankers' Acceptance outstanding during
such Utilization Period equal to an amount calculated by multiplying:
(i) a fraction, the numerator of which is the number of days in
the term of the Bankers' Acceptance in such Utilization Period
and the denominator of which is the number of days in the term
of the Bankers' Acceptance; by
(ii) the excess (if any) of (A) the amount of Acceptance Fees which
would have been payable in respect of such Bankers' Acceptance
had the Canadian Utilization at the time of the issuance of
such Bankers' Acceptance been the same as the actual Canadian
Utilization during such Utilization Period, over (B) the
amount of Acceptance Fees which actually were paid in respect
of such Bankers' Acceptance.
3.4 Conversion Option. Subject to the provisions of this
Agreement, Chrysler Canada may, prior to the Termination Date, effective on any
Business Day, convert, in whole or in part, C$ Prime Loans into Bankers'
Acceptances or vice versa upon giving to the Canadian Administrative Agent
prior irrevocable telephone or written notice within the notice period and in
the form which would be required to be given to the Canadian Administrative
Agent in respect of the category of C$ Prime Loan into which the outstanding C$
Prime Loan is to be converted in accordance with the
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provisions of subsection 3.2 or 3.3, as applicable, followed by written
confirmation on the same day, provided that:
(i) no C$ Prime Loan may be converted into a Bankers' Acceptance
when any Event of Default has occurred and is continuing and
the Canadian Administrative Agent has or the Required C$ Banks
have determined in its or their sole discretion that such
conversion is not appropriate;
(ii) each conversion to Bankers' Acceptances shall be for a minimum
aggregate amount of C$10,000,000 (and whole multiples of
C$100,000 in excess thereof) and each conversion to C$ Prime
Loans shall be in a minimum aggregate amount of C$5,000,000;
and
(iii) Bankers' Acceptances may be converted only on the maturity
date of such Bankers' Acceptances and, provided that, if less
than all Bankers' Acceptances are converted, then after such
conversion not less than C$10,000,000 (and whole multiples of
C$100,000 in excess thereof) shall remain as Bankers'
Acceptances.
3.5 Currency Fluctuations, etc. (a) No later than 2:00
P.M., Toronto time, on each Canadian Calculation Date, the Canadian
Administrative Agent shall (i) determine the Canadian Exchange Rate as of such
date and (ii) give notice thereof to Chrysler and Chrysler Canada. The
Canadian Exchange Rate so determined shall become effective on the first
Business Day immediately following the relevant Canadian Calculation Date (a
"Canadian Reset Date") and shall remain effective until the next succeeding
Canadian Reset Date.
(b) No later than 2:00 P.M., New York City time, on each
Canadian Reset Date and each Borrowing Date in respect of C$ Loans, the
Canadian Administrative Agent shall (i) determine the US$ Equivalent of the C$
Loans then outstanding (after giving effect to any C$ Loans to be made or
repaid on such date) and (ii) notify Chrysler and Chrysler Canada of the
results of such determination.
(c) If, on any Canadian Reset Date (after giving effect to
(i) any C$ Loans to be made or repaid on such date and (ii) any increase or
decrease in any Canadian Commitment pursuant to subsection 13.9 effective on
such date of which the Canadian Administrative Agent has received notice), the
Aggregate Canadian Extensions of Credit of any C$ Bank exceeds 105% of the
Canadian Commitment of such C$ Bank, then, within ten Business Days after
notice thereof from the Canadian Administrative Agent, (i) Chrysler Canada
shall reduce the aggregate C$ Loans (which reduction, in the case of Bankers'
Acceptances, may be effected by Defeasance thereof) and/or (ii) Chrysler shall
increase the Canadian Commitments pursuant to subsection 13.9 in an amount such
that, after giving effect thereto, the Aggregate Canadian Extensions of Credit
of each C$ Bank shall be equal to or less than the Canadian Commitment of such
Bank.
(d) The Canadian Administrative Agent shall promptly furnish
the Administrative Agent and each affected C$ Bank with a copy of any notice
delivered to Chrysler or Chrysler Canada pursuant to this subsection 3.5.
(e) Notwithstanding the foregoing provisions of this
subsection 3.5, after the initial Canadian Calculation Date, the Canadian
Administrative Agent may at its option suspend the resetting
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of the Canadian Exchange Rate pursuant to subsection 3.5(a) and the making of
the determinations referred to in subsections 3.5(b) and 3.5(c) during any
period when the sum of the Aggregate Canadian Extensions of Credit of all C$
Banks, calculated using the Canadian Exchange Rate effective as of the last
Canadian Reset Date prior to such suspension, is less than 50% of the aggregate
Canadian Commitments then in effect.
SECTION 4. GENERAL PROVISIONS
4.1 Repayment of Loans; Evidence of Debt. (a) The
relevant Facility Borrower shall repay to the relevant Agent for the account of
each relevant Bank all outstanding relevant Facility Loans (together with all
accrued unpaid interest thereon) on the Termination Date (or such earlier date
as may be established pursuant to Section 9) and shall pay interest on the
relevant unpaid principal amount of the Facility Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 4.2.
(b) (i) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Facility Borrower to
the appropriate lending office of such Bank resulting from each Facility Loan
made by such lending office of such Bank from time to time, including the
amounts of principal and interest payable and paid to such lending office of
such Bank from time to time under this Agreement.
(ii) The Administrative Agent shall maintain the U.S. Register
pursuant to subsection 13.6(d), and a subaccount for each US$ Bank, in which
Register and subaccounts (taken together) shall be recorded (A) the amount of
each U.S. Loan made hereunder, the Type of each U.S. Loan made and the
Interest Period (if any) applicable thereto, (B) the amount of any principal or
interest due and payable or to become due and payable from Chrysler to each US$
Bank hereunder and (C) the amount of any sum received by the Administrative
Agent hereunder from Chrysler and each US$ Bank's share thereof.
(iii) The Canadian Administrative Agent shall maintain the Canadian
Register pursuant to subsection 13.6(d), and a subaccount for each C$ Bank, in
which Register and subaccounts (taken together) shall be recorded (A) the
amount of each C$ Loan made hereunder, whether such Loan is a C$ Prime Loan or
a Bankers' Acceptance, (B) the amount of any principal or interest due and
payable or to become due and payable from Chrysler Canada to each C$ Bank
hereunder and (C) the amount of any sum received by the Canadian Administrative
Agent hereunder from Chrysler Canada and each C$ Bank's share thereof.
(iv) The entries made in the Registers and accounts maintained
pursuant to paragraphs (i), (ii) and (iii) of this subsection 4.1(b) shall, to
the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the relevant Facility Borrower
therein recorded; provided, however, that the failure of any Bank or either
Agent to maintain such account, such Register or such subaccount, as
applicable, or any error therein, shall not in any manner affect the obligation
of each Facility Borrower to repay the Facility Loans (and all other amounts
owing with respect thereto) made to such Facility Borrower in accordance with
the terms of this Agreement.
4.2 Interest Rate and Payment Dates. (a) The Eurodollar
Loans shall bear interest for each day during each Interest Period therefor on
the unpaid principal amount thereof at a rate per
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annum equal to the Eurodollar Rate determined for such Interest Period in
accordance with the terms hereof plus the Applicable Margin in effect on the
first day of such Interest Period.
(b) The Base Rate Loans shall bear interest on the unpaid
principal amount thereof, for each day from the date such Base Rate Loans are
made until the maturity thereof (whether at the stated maturity, by
acceleration or otherwise) at a rate per annum equal to the Base Rate for such
day.
(c) Each C$ Prime Loan shall bear interest on the unpaid
principal amount thereof, for each day from the date such C$ Prime Loans are
made until the maturity thereof (whether at the stated maturity, by
acceleration or otherwise), at a rate per annum equal to the Canadian Prime
Rate determined for such day.
(d) If all or a portion of (i) the principal amount of any
Facility Loan, (ii) any interest payable thereon or (iii) any Facility Fee,
Acceptance Fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise) such overdue
amount shall bear interest for each day from the date of such non-payment until
paid in full (both before and after judgment) at a rate per annum which is (x)
in the case of overdue principal, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this subsection 4.2 plus 2%,
or (y) in the case of any overdue interest, Facility Fee, Acceptance Fee or
other amount, the rate described in subsection 4.2(b) (in the case of amounts
payable in Dollars) or 4.2(c) (in the case of amounts payable in C$) plus 2%,
in each case from the date of such non-payment to (but excluding) the date on
which such amount is paid in full (as well after as before judgment).
(e) Interest shall be payable in arrears (i) with respect to
Eurodollar Loans having an Interest Period of three months or less, on the last
day of such Interest Period, (ii) with respect to Eurodollar Loans having an
Interest Period longer than three months, on each day which is three months, or
a whole multiple thereof, after the first day of such Interest Period and the
last day of such Interest Period, (iii) with respect to Base Rate Loans and C$
Prime Loans, on the last day of each March, June, September and December, and
(iv) with respect to all Facility Loans, upon each repayment, prepayment or
conversion thereof; provided that interest accruing pursuant to subsection
4.2(d) shall be payable on demand. Interest payable in respect of U.S. Loans
shall be payable in Dollars by Chrysler and interest payable in respect of C$
Loans shall be payable in C$ by Chrysler Canada (subject to Section 12).
(f) The amount of interest on any Eurodollar Loans to be paid
on any date as specified in paragraph (e) above shall in each case be
determined under the assumption that the U.S. Utilization for the Utilization
Period(s) during which such interest accrued was less than 50%. On the first
Business Day following the last day of each Excess U.S. Utilization Period,
Chrysler shall pay to the Administrative Agent, for the benefit of the US$
Banks, an additional amount of interest equal to the excess (if any) of (i) the
amount of interest which accrued during such U.S. Utilization Period after
giving effect to the actual U.S. Utilization for such Utilization Period
(whether or not such accrued interest was actually payable during such
Utilization Period) over (ii) the amount of interest which would have accrued
during such Utilization Period if the U.S. Utilization during such Utilization
Period had been less than 50%.
4.3 Facility Fees. (a) Chrysler agrees to pay to the
Administrative Agent, for the account of each US$ Bank, in Dollars, a facility
fee (the "U.S. Facility Fee") for each day from and
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including the Effective Date to but excluding the Final Date. Such fee shall
be payable quarterly in arrears on (i) 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 (ii) on the Final Date
(for the period ended on such date for which no payment has been received
pursuant to clause (i) above) and shall be computed for each day during such
period at a rate per annum equal to the Facility Fee Rate in effect on such day
on the US$ Bank Net Combined Commitment of such US$ Bank in effect on such day.
(b) Chrysler Canada agrees to pay to the Canadian
Administrative Agent, for the account of each relevant C$ Bank, in Dollars, a
facility fee (the "Canadian Facility Fee") for each day from and including the
Effective Date to but excluding the Final Date. Such fee shall be payable
quarterly in arrears on (i) 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 (ii) on the Final Date (for the
period ended on such date for which no payment has been received pursuant to
clause (i) above) and shall be computed for each day during such period at a
rate per annum equal to the Facility Fee Rate in effect on such day on the
Designated Canadian Commitment Amount of such C$ Bank in effect on such day.
4.4 Lending Procedures. (a) Unless the relevant Agent
shall have received notice from a Bank prior to a Borrowing Date that such Bank
will not make available to such Agent such Bank's ratable portion of the
relevant borrowing, such Agent may assume that such Bank has made such portion
available to such Agent on the date of such borrowing in accordance with
subsection 2.2, 3.2 or 3.3, and such Agent may, in reliance upon such
assumption, make available to the relevant Facility Borrower on such date a
corresponding amount. If such Agent does, in such circumstances, make
available to such Facility Borrower such amount, such Bank shall make such
ratable portion available to such Agent forthwith on demand, together with
interest thereon for each day from and including such Borrowing Date that such
ratable portion was not made available, at the Federal Funds Effective Rate in
the case of U.S. Loans) or at the then effective Bank Rate (in the case of C$
Loans). If such amount is so made available, such payment to such Agent shall
constitute such Bank's Loan on such Borrowing Date for all purposes of this
Agreement. If such amount is not so made available to such Agent, then such
Agent shall notify the relevant Facility Borrower of such failure, and on the
fourth Business Day following such Borrowing Date such Facility Borrower shall
pay to such Agent such ratable portion, together with interest thereon for each
day that such Facility Borrower had the use of such ratable portion, at the
Federal Funds Effective Rate (in the case of U.S. Loans) or at the then
effective Bank Rate (in the case of C$ Loans). Nothing contained in this
subsection 4.4 shall relieve any Bank which has failed to make available its
ratable portion of any borrowing hereunder from its obligation to do so in
accordance with the terms hereof.
(b) The failure of any Bank to make the Loan to be made by it
on any Borrowing Date shall not relieve any other Bank of its obligation, if
any, hereunder to make its Loan on such Borrowing Date, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be made by
such other Bank on such Borrowing Date.
4.5 Termination or Reduction of Commitments. Chrysler
shall have the right, upon not less than five Business Days' notice to the
Administrative Agent, to terminate the U.S. Commitments or, from time to time,
reduce the amount of the U.S. Commitments; provided, that, after giving effect
thereto and any contemporaneous prepayment of the Loans, (a) the Aggregate U.S.
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Extensions of Credit of each US$ Bank shall be no greater than such Bank's U.S.
Net Commitment, (b) the Aggregate U.S./Foreign Extensions of Credit of each US$
Bank shall be no greater than such Bank's U.S. Commitment and (c) the aggregate
of all Foreign Currency Subfacility Maximum Borrowing Amounts in respect of
each US$ Bank shall not exceed 60% of such Bank's U.S. Commitment. Chrysler
Canada shall have the right, upon not less than five Business Days' notice to
the Administrative Agent, to terminate the Canadian Commitments or, from time
to time, reduce the amount of the Canadian Commitments; provided, that, after
giving effect thereto and any contemporaneous prepayment of the C$ Loans, the
Aggregate Canadian Extensions of Credit of each C$ Bank shall be no greater
than such Bank's Canadian Commitment. Upon receipt of such notice the
Administrative Agent shall promptly notify each relevant Bank thereof. Any
such reduction shall be in an amount equal to $25,000,000 or a multiple of
$1,000,000 in excess thereof (in the case of U.S. Commitments) and $10,000,000
or a multiple of $1,000,000 in excess thereof (in the case of Canadian
Commitments), and shall reduce permanently the amount of the affected
Commitments then in effect. Any termination of the Commitments shall be
accompanied by prepayment in full of the relevant Loans, together with accrued
interest thereon to the date of such prepayment, and the prepayment of any
unpaid fee then accrued hereunder and the payment of any other amounts due
pursuant to subsection 4.11.
4.6 Optional Prepayments. Each Facility Borrower may, at
its option at any time and from time to time, prepay the Loans made to it, in
whole or in part, without premium or penalty, subject to the provisions of
subsection 4.11, upon at least four Business Days' notice to the relevant Agent
specifying the date and amount of prepayment and the category or categories of
Facility Loan to be prepaid, provided that each partial prepayment shall be in
an aggregate amount equal to $25,000,000 or a multiple of $1,000,000 in excess
thereof (in the case of U.S. Loans) and C$5,000,000 or a multiple of
C$1,000,000 in excess thereof (in the case of C$ Prime Loans), and provided,
further, that after giving effect to any prepayment of Eurodollar Loans, the
aggregate principal amount of the Eurodollar Loans comprising any outstanding
Eurodollar Tranche shall not be less than $25,000,000. Upon receipt of such
notice, the relevant Agent shall promptly notify each relevant Bank thereof.
Such notice shall be irrevocable, and the payment amount specified in such
notice shall be due and payable on the date specified, together with accrued
interest to such date on the amount prepaid. Notwithstanding anything to the
contrary above, Facility Loans consisting of Bankers' Acceptances may not be
prepaid pursuant to this subsection 4.6.
4.7 Computation of Interest and Fees. (a) Interest
(other than interest calculated on the basis of the Prime Rate or the Canadian
Prime Rate) shall be calculated on the basis of a 360-day year for the actual
days elapsed. Facility Fees, Acceptance Fees and interest calculated on the
basis of the Prime Rate or the Canadian Prime Rate is expressed herein and
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The relevant Agent shall, as soon as
practicable, notify the relevant Facility Borrower and the relevant Banks of
each determination of the Eurodollar Rate or the Applicable BA Discount Rate.
Any change in the interest rate on a Facility Loan or in any Facility Fee or
Acceptance Fee resulting from a change in the Base Rate, the Canadian Prime
Rate, the Applicable Margin or Status shall become effective as of the opening
of business on the day on which such change in the Base Rate or Canadian Prime
Rate shall become effective, or the Applicable Margin or Status changes as
provided herein, as the case may be. Subject to subsection 4.2(f), the
Applicable Margin with respect to Eurodollar Loans or Bankers' Acceptances that
is in effect on the first day of any Interest Period with respect to such
Eurodollar Loans or Bankers' Acceptances shall remain in effect throughout such
Interest Period. The relevant
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Agent shall notify the relevant Facility Borrower and the relevant Banks of the
effective date and the amount of each such change in the Base Rate or Canadian
Prime Rate.
(b) Each determination, pursuant to and in accordance with
any provision of this Agreement, of an interest rate applicable to a Eurodollar
Loan or Bankers' Acceptances for any Interest Period by the relevant Agent, and
each determination by a Reference Bank of a rate with respect to a Eurodollar
Loan or a Bankers' Acceptance for any Interest Period to be notified to the
relevant Agent pursuant to the definition of "Eurodollar Rate" or "Applicable
BA Discount Rate", as the case may be, shall be conclusive and binding on the
relevant Facility Borrower and the relevant Banks in the absence of manifest
error. The relevant Agent shall deliver to such Facility Borrower a statement
showing the quotations given by the relevant Reference Bank and the computation
used by the relevant Agent in determining any Eurodollar Rate or Applicable BA
Discount Rate.
(c) If any Reference Bank's relevant Commitment shall
terminate (otherwise than on termination of all the Commitments), or, as the
case may be, the relevant Facility Loans made by it are assigned, or prepaid or
repaid (otherwise than on the prepayment or repayment of the relevant Facility
Loans among the Banks) for any reason whatsoever, such Reference Bank shall
thereupon cease to be a Reference Bank, and, if as a result of the foregoing,
there shall only be one Reference Bank of a particular category remaining, then
the relevant Agent (after consultation with the relevant Facility Borrower and
the relevant Banks) shall, as soon as practicable thereafter, by notice to the
relevant Facility Borrower and the relevant Banks, designate another Bank that
is willing to act as a Reference Bank so that there shall at all times be at
least two Reference Banks of each category. In acting so to designate another
Bank to serve as a Eurodollar Reference Bank, the Administrative Agent will use
its best efforts to ensure that one Eurodollar Reference Bank will, at all
times, be a US$ Bank that has its headquarters office located outside the
United States.
(d) If any of the relevant Reference Banks shall be unable or
shall otherwise fail to provide notice of a rate to the relevant Agent with
respect to a Eurodollar Rate, an Applicable BA Discount Rate or a Foreign
Exchange Rate, such rate shall be determined on the basis of the rates provided
in notices of the remaining relevant Reference Banks.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing
of U.S. Loans shall be made pro rata according to the then existing Available
U.S. Commitments of the US$ Banks and each borrowing of C$ Loans shall be made
pro rata according to the then existing Canadian Commitments of the C$ Banks.
Each payment (except for payments to a particular Bank pursuant to or as a
result of subsection 2.4(b), 4.9, 4.10 or 4.11 but otherwise including each
prepayment) by a Facility Borrower on account of principal of and interest on
any category of Facility Loan (other than Eurodollar Loans) shall be made on a
pro rata basis according to the amounts of the then outstanding Facility Loans
of such type of the relevant Banks. Each payment (including each prepayment)
by Chrysler on account of principal of and interest on Eurodollar Loans
designated by Chrysler to be applied to a particular Eurodollar Tranche shall
be made pro rata according to the respective outstanding principal amounts of
such Eurodollar Loans then held by the US$ Banks. Any reduction of the amount
of the Commitments of the Banks hereunder (except for a Commitment reduction or
termination pursuant to subsection 4.10), shall be made pro rata according to
the amounts of the then existing relevant Commitments. All payments (including
prepayments) by the relevant Facility Borrower hereunder shall be made without
set-off or counterclaim to the relevant Agent for the account of the relevant
Banks at the office of the relevant Agent referred to in subsection 13.2 in
Dollars or C$, as applicable, and in immediately
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available funds. The relevant Agent shall distribute such payments to each
relevant Bank promptly upon receipt in like funds as received. If any payment
hereunder (other than a payment in respect of a Eurodollar Loan) becomes due
and payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension. If any payment on a Eurodollar Loan becomes due and payable on
a day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day (and, with respect to payments of principal,
interest thereon will be payable at the then applicable rate during such
extension) unless the result of such extension would be to extend such payment
into another calendar month in which event such payment shall be made on the
immediately preceding Business Day. The provisions of the first four sentences
of this subsection 4.8(a) shall not apply to any borrowing or prepayment made
pursuant to subsection 13.9.
(b) Unless the relevant Agent shall have received notice from
the relevant Facility Borrower prior to the date on which any payment is due to
the relevant Banks hereunder that such Facility Borrower will not make such
payment in full, the relevant Agent may assume that such Facility Borrower has
made such payment in full to the relevant Agent on such date, and the relevant
Agent may, in reliance upon such assumption, cause to be distributed to each
relevant Bank on such due date an amount equal to the amount then due to such
Bank. If and to the extent a Facility Borrower shall not have so made such
payment in full to the relevant Agent, each relevant Bank shall repay to the
relevant Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from and including the date such
amount is distributed to such Bank to but excluding the date such Bank repays
such amount to the relevant Agent at the Federal Funds Effective Rate (in the
case of U.S. Loans) or the then effective Bank Rate (in the case of C$ Loans)
for each such day. Nothing contained in this subsection 4.8(b) shall relieve a
Facility Borrower from its obligations to make payments on all amounts due
hereunder in accordance with the terms hereof.
4.9 Increased Costs. In the event that any law, regulation,
treaty or directive or any change therein or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority enacted or made subsequent to the date hereof:
(a) shall subject any Bank to any Taxes with respect to this
Agreement, or any Loans, or change the basis on which such Taxes are
calculated; or
(b) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Bank; or
(c) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining advances or extensions of credit hereunder to either
Facility Borrower or to reduce any amounts receivable hereunder from either
Facility Borrower (such increase in cost or reduction in amounts receivable,
"Increased Costs") then, in any such case, such Facility Borrower shall
promptly pay to the relevant Agent for the account of such Bank, upon the
written demand of such Bank to such Facility
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Borrower (with a copy to the relevant Agent), so long as such Increased Costs
are not otherwise included in the amounts required to be paid to such Bank
pursuant to subsection 2.4(b), 4.10 or 4.11, any additional amounts necessary
to compensate such Bank for such Increased Costs which such Bank deems to be
material as determined by such Bank with respect to its Eurodollar Loans or
Bankers' Acceptances, as the case may be. If a Bank becomes entitled to claim
any additional amounts pursuant to this subsection 4.9, it shall promptly (but
in any event within 90 days after becoming aware of such amounts) notify the
relevant Facility Borrower, through the relevant Agent, of the event by reason
of which it has become so entitled. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by a Bank, through the
relevant Agent, to the relevant Facility Borrower shall be conclusive in the
absence of manifest error. The agreements in this subsection shall survive the
termination of this Agreement, the termination of the Commitments and the
payment of the Loans and all other amounts payable hereunder.
4.10 Capital Adequacy. In the event the Board of
Governors of the Federal Reserve System, the Comptroller of the Currency or
other domestic or foreign Governmental Authority having jurisdiction with
respect to the matters referred to below shall, pursuant to any Capital
Adequacy Law (as hereinafter defined), in the opinion of counsel for any Bank
(which may, in the discretion of such Bank, be such Bank's internal counsel),
require (whether or not such requirement has the force of law) that the
Commitment of such Bank under this Agreement be treated as an asset or
otherwise be included for purposes of calculating the amount of capital to be
maintained by such Bank or any corporation controlling such Bank (such
requirement, a "Capital Adequacy Law"), and such Bank shall determine that, as
a result of any change in any Capital Adequacy Law subsequent to the Effective
Date, the cost to such Bank of maintaining its Commitment shall be increased by
an amount which such Bank determines to be material, such affected Bank shall
so notify Chrysler and the Administrative Agent within ninety (90) days of such
determination (the date of such determination, the "Determination Date"). At
the time of such notification such affected Bank shall provide Chrysler with a
written statement, certified by a senior officer of such affected Bank
responsible for assessing costs associated with its compliance with capital
adequacy requirements, setting forth the amount that would adequately
compensate such affected Bank for the costs associated with such change in
Capital Adequacy Law and setting forth in reasonable detail the assumptions
upon which such affected Bank calculated such amount, and a copy of the opinion
of counsel referred to in the preceding sentence, provided that such affected
Bank shall not be required to disclose information not made available to the
public. Chrysler and such affected Bank shall thereafter negotiate in good
faith an agreement to increase the Facility Fee payable to such affected Bank
under this Agreement, which, in the opinion of such affected Bank, will
adequately compensate such affected Bank for such costs so long as such change
in Capital Adequacy Law is in effect and continues to increase the costs to
such Bank of maintaining its Commitment. If such increase is approved in
writing by Chrysler within forty-five (45) days from the date of the notice to
Chrysler from such affected Bank, the Facility Fee payable by Chrysler under
this Agreement shall, effective from (i) the Determination Date or, if such
change in Capital Adequacy Law shall not become effective until a date which is
later than the Determination Date, from such later date or (ii) such other date
as shall be mutually agreed upon between Chrysler and such affected Bank,
include the amount of such agreed increase, and Chrysler will so notify the
Administrative Agent. If Chrysler and such affected Bank are unable to agree
on such an increase within forty-five (45) days from the date of the notice to
Chrysler from such affected Bank, Chrysler shall, by written notice to such
affected Bank within fifty (50) days from the date of the aforesaid notice to
Chrysler from such affected Bank, elect either to (a) terminate the Commitment
of such affected Bank concurrently with the execution by one or more New Banks
or Banks of supplements hereto,
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substantially in the form of Exhibit A or Exhibit B, as the case may be, and,
in the case of any New Bank, such New Bank becoming a party hereto pursuant to
subsection 13.9, and the sum of such New Banks' Commitments and Banks'
increases in their Commitments shall be in an aggregate amount at least equal
to the Commitment of such affected Bank immediately prior to its termination,
(b) increase the Facility Fee payable to such affected Bank by the amount and
for the time period requested by such affected Bank, or (c) extend the period
of negotiation for a further forty-five (45) day period to commence the
forty-sixth day after the date of notice from such affected Bank. At the end
of such second forty-five (45) day period Chrysler shall by written notice to
such affected Bank elect either clause (a) or clause (b) of the preceding
sentence, provided that if Chrysler elects clause (b) at such time it shall pay
to the affected Bank an increase in the Facility Fee by the amount requested by
such Bank and for the time period requested by such Bank. Without limiting the
foregoing if Chrysler elects to take the action described in clause (b) of the
second preceding sentence, it may simultaneously therewith reduce the
Commitment of such affected Bank by an amount chosen by Chrysler, provided that
concurrently therewith one or more New Banks or Banks shall have executed
supplements, substantially in the form of Exhibit A or Exhibit B, as the case
may be, and, in the case of any New Bank, become a party hereto pursuant to
subsection 13.9, and the sum of such New Banks' Commitments and Banks'
increases in their Commitments shall be in an aggregate amount at least equal
to such reduction in the Commitment of such affected Bank. If Chrysler fails
to provide notice to such affected Bank as described in the third preceding
sentence by such fiftieth day, Chrysler shall be deemed to have taken the
action described in clause (b) above. The agreements in this subsection shall
survive the termination of this Agreement, the termination of the Commitments
and the payment of the Loans and all other amounts payable hereunder.
4.11 Indemnity. Each Facility Borrower, as applicable,
agrees to indemnify each relevant Bank against and to hold each relevant Bank
harmless from any loss or reasonable expense which such Bank may sustain or
incur as a consequence of (a) default by such Facility Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans or Bankers'
Acceptances after such Facility Borrower has given a notice requesting the same
in accordance with the provisions of this Agreement, (b) default by such
Facility Borrower in making any prepayment after such Facility Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
(c) the making of a prepayment or conversion of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. In the case of
Eurodollar Loans such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid or converted, or not so borrowed, converted or continued, for
the period from the date of such prepayment or conversion or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Bank) which would have accrued to
such Bank on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market. This covenant
shall survive the termination of this Agreement, the termination of the
Commitments and the payment of the Facility Loans and all other amounts payable
hereunder.
4.12 Use of Proceeds. The proceeds of the Facility Loans
shall be used by each Facility Borrower for general corporate purposes
including, without limitation, the funding of acquisitions.
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4.13 Replacement of Banks. Chrysler shall be permitted to
replace any Bank which (a) requests reimbursement for amounts owing pursuant to
subsection 2.4, 4.9, 4.10, or 4.11, or (b) defaults in its obligation to make
Facility Loans, with a replacement Commercial Bank; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) the relevant Facility Borrower or Foreign Subsidiary Borrower shall repay
(or the replacement Commercial Bank shall purchase, at par) all Loans (other
than Bankers' Acceptances) and other amounts (including accrued interest) owing
to such replaced Bank concurrently with such replacement, (iv) in the case of
any replaced C$ Banks, (x) Chrysler Canada shall Defease all Bankers'
Acceptances accepted by such replaced Bank and (y) Chrysler Canada shall give
the Canadian Administrative Agent notice of such Defeasance, (v) Chrysler shall
be liable to such replaced Bank under subsection 4.11 if any Eurodollar Loan
owing to such replaced Bank shall be prepaid (or purchased) other than on the
last day of the Interest Period relating thereto, (vi) the replacement
Commercial Bank, if not already a Bank, and the terms and conditions of such
replacement, shall be reasonably satisfactory to the Administrative Agent,
(vii) the replaced Bank shall be obligated to make such replacement in
accordance with the provisions of subsection 13.6 (provided that Chrysler shall
be obligated to pay the registration and processing fee referred to therein),
(viii) until such time as such replacement shall be consummated, the Facility
Borrowers shall pay all additional amounts (if any) required pursuant to
subsection 2.4, 4.9 or 4.10, as the case may be, and (ix) any such replacement
shall not be deemed to be a waiver of any rights which the Facility Borrowers,
the Foreign Subsidiary Borrowers, any Agent or any other Bank shall have
against the replaced Bank.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and
to make the Loans, Chrysler (and Chrysler Canada, in the case of each
representation and warranty which relates to Chrysler Canada or any of its
Subsidiaries) hereby represents and warrants to the Agents and to each Bank
that:
5.1 Financial Condition. The consolidated balance sheet
of Chrysler and its subsidiaries as at December 31, 1996 and the related
consolidated statements of income and changes in financial position for the
fiscal year ended on such date, reported on by Deloitte & Touche LLP, copies of
which, as contained in or incorporated by reference in Chrysler's Annual Report
on Form 10-K for the fiscal year ended December 31, 1996, have heretofore been
furnished to each Bank, present fairly the consolidated financial position of
Chrysler and its subsidiaries as at such date, and the consolidated results of
their operations and changes in cash flow for the fiscal year then ended. The
unaudited consolidated balance sheet of Chrysler and its subsidiaries as at
March 31, 1997, and the related consolidated statements of income and changes
in financial position for the three-month period ended on such date, certified
by a Responsible Officer, copies of which have heretofore been delivered to
each Bank, present fairly the consolidated financial position of Chrysler and
its subsidiaries as at such date, and the consolidated results of their
operations and changes in cash flow for the three-month period then ended
(subject to normal year-end audit adjustments). All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP. As at December 31, 1996, neither Chrysler nor any of its
subsidiaries had any asset, liability, contingent obligation, liability for
taxes, long-term lease or unusual forward or long-term commitment material to
the financial condition of Chrysler and its subsidiaries taken as a whole,
which was not reflected (i) in
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the foregoing statements or in the notes thereto or (ii) in Chrysler's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996.
5.2 No Change. Between December 31, 1996 and the
Effective Date, there will have been no material adverse change in the
business, operations, property or financial condition of Chrysler and its
subsidiaries taken as a whole.
5.3 Corporate Existence. Chrysler and each of its
Significant Subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
and 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 to
be so qualified would not have a material adverse effect on the business,
operations, property or financial condition of Chrysler and its Subsidiaries
taken as a whole.
5.4 Corporate Authorization; No Violation. The
execution, delivery and performance by each Facility Borrower of this Agreement
are within such Facility Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene any Requirement of Law
or Contractual Obligation of Chrysler or any of its Subsidiaries or result in
the creation of a Lien on any of their respective assets.
5.5 Government Authorization. No authorization or
approval or other action by, and no notice to or filing with, any Governmental
Authority is required to be obtained or made by either Facility Borrower for
the due execution, delivery and performance by such Facility Borrower of this
Agreement.
5.6 Federal Regulations. Neither Chrysler nor any of its
Subsidiaries is principally engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of
Regulation U, T, G or X), and no proceeds of any borrowing hereunder will be
used in violation of Regulation U or X. If requested by the Administrative
Agent or any Bank at any time, Chrysler will furnish to the Administrative
Agent and each Bank a statement in conformity with the requirements of FR Form
U-1 referred to in Regulation U.
5.7 Enforceable Obligations. This Agreement has been
duly executed and delivered on behalf of each Facility Borrower and constitutes
a legal, valid and binding obligation of each Facility Borrower enforceable
against such Facility Borrower 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 principles of equity.
5.8 No Material Litigation. No litigation, investigation
or proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of either Facility Borrower, threatened by or against
Chrysler or any of its Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to this Agreement or any of the
transactions contemplated hereby, or (b) which would reasonably be expected to
have a material adverse effect on the business, operations, property or
financial condition of Chrysler and its Subsidiaries taken as a whole.
SECTION 6. CONDITIONS PRECEDENT TO LOANS
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6.1 Conditions of Effectiveness. The effectiveness of
this Agreement is subject to the satisfaction of the following conditions
precedent:
(a) Execution of Agreement and Addenda. (i) This Agreement
shall have been executed and delivered by a duly authorized officer of
each Facility Borrower, each Bank and each Agent, (ii) the
Administrative Agent shall have received an executed Addendum (or a
copy thereof by facsimile transmission) from each Person listed on
Schedule I, provided, that, notwithstanding the foregoing, in the
event that an Addendum has not been duly executed and delivered by
each Person listed on Schedule I on the date (which shall be no
earlier than the date hereof) on which this Agreement shall have been
executed and delivered by each Facility Borrower and the
Administrative Agent, this Agreement shall, subject to satisfaction of
the other conditions precedent set forth in this subsection 6.1,
nevertheless become effective on such date with respect to those
Persons which have executed and delivered an Addendum on or before
such date if on such date Chrysler and the Administrative Agent shall
have designated one or more Commercial Banks (the " Designated Banks")
to assume, in the aggregate, all of the Commitments which would have
been held by the Persons listed on Schedule I (the "Non- Executing
Persons") which have not so executed an Addendum (subject to each such
Designated Bank's prior written consent in its sole discretion and its
execution of an Addendum). Schedule I shall automatically be deemed
to be amended to reflect the respective Commitments of the Designated
Banks and the omission of the Non-Executing Persons as Banks
hereunder. Each Facility Borrower acknowledges that each Person which
has executed an Addendum shall constitute a "Bank" for the purposes of
this Agreement.
(b) Closing Certificate. The Administrative Agent shall have
received a certificate of each Facility Borrower, dated the Effective
Date, substantially in the form of Exhibit G, with appropriate
insertions, satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of each Facility Borrower, and
attaching the documents referred to in subsections 6.1(c) and (d).
(c) Corporate Proceedings of the Facility Borrowers. The
Administrative Agent shall have received a copy of the resolutions, in
form and substance satisfactory to the Administrative Agent, of the
Board of Directors of each Facility Borrower (or a duly authorized
committee thereof, in which case such resolutions shall be accompanied
by evidence of the authority of such committee to act in regard to
such matters) authorizing the execution, delivery and performance of
this Agreement.
(d) Corporate Documents. The Administrative Agent shall have
received true and complete copies of the certificate of incorporation
or amalgamation and by-laws of each Facility Borrower.
(e) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions, with a copy for each
Bank:
(i) the executed legal opinion of Simpson Thacher &
Bartlett, counsel to the Administrative Agent, substantially
in the form of Exhibit C;
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(ii) the executed legal opinion of William J.
O'Brien, General Counsel of Chrysler, substantially in the
form of Exhibit D-1; and
(iii) the executed legal opinion of Fasken Campbell
Godfrey, Canadian Counsel to Chrysler Canada, substantially in
the form of Exhibit D-2.
(f) Existing Credit Agreement. The Administrative Agent
shall have received satisfactory evidence that the Existing Credit
Agreement shall have been terminated pursuant to an irrevocable notice
of termination and that any amounts owing thereunder (including,
without limitation, any accrued unpaid fees thereunder through the
Effective Date) by Chrysler or Chrysler Canada, as the case may be,
shall have been (or shall upon the occurrence of the Effective Date
be) paid in full. Without affecting any terms of the Existing Credit
Agreement which expressly survive the termination of the Existing
Credit Agreement, each Bank party to the Existing Credit Agreement
hereby waives any requirement of advance notice of such termination
contained in the Existing Credit Agreement and hereby agrees that the
Existing Credit Agreement and the commitments thereunder (subject to
receipt of any other required consents of any other Person) shall
terminate simultaneously with the satisfaction of the conditions to
effectiveness set forth in this subsection 6.1.
The Administrative Agent shall notify the Banks of the Effective Date promptly
after the occurrence thereof, which notice shall be accompanied, if applicable,
by a copy of Schedule I revised to give effect to any deemed amendments thereto
made pursuant to subsection 6.1(a).
6.2 Conditions to All Facility Loans. The obligation of
each Bank to make any Facility Loan (including any Facility Loan on the
Effective Date but excluding any conversion or continuation of any Loan
pursuant to subsection 2.3 or 3.4) is subject to the satisfaction (or waiver by
the Required U.S. Banks (in the case of U.S. Loans) or the Required C$ Banks
(in the case of C$ Loans)) of the conditions precedent described in clauses
(a), (b) and (c) below:
(a) Representations and Warranties. The representations and
warranties made by Chrysler and, in the case of C$ Loans, Chrysler
Canada, herein (except for the representations and warranties set
forth in subsection 5.2) shall be true and correct in all material
respects on and as of the Borrowing Date for such Facility Loan as if
made on and as of such date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such Borrowing Date
or after giving effect to the Facility Loan to be made on such
Borrowing Date.
(c) Corporate Authority. The borrowing of such Facility Loan
shall have been duly authorized by all necessary corporate action on
the part of the relevant Facility Borrower and the relevant Agent
shall have received evidence of such corporate authority.
Each borrowing by either Facility Borrower hereunder shall constitute a
representation and warranty by such Facility Borrower hereunder as of the date
of each such borrowing that the conditions in clauses (a), (b) and (c) above
have been satisfied.
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SECTION 7. AFFIRMATIVE COVENANTS
From and after the Effective Date, so long as the Commitments
remain in effect, any Facility Loans remain outstanding and unpaid or any other
amount is owing hereunder to any Bank or either Agent:
7.1 Financial Statements. Each Facility Borrower will
furnish (a) in the case of Chrysler, to the Administrative Agent and each Bank
or (b) in the case of Chrysler Canada, to the Canadian Administrative Agent and
each C$ Bank:
(i) as soon as available, but in any event within 120 days
after the end of each fiscal year of such Facility Borrower, a copy of
the consolidated balance sheet of such Facility Borrower and its
subsidiaries as at the end of such year and the related consolidated
statements of income and cash flows for such year, setting forth in
each case in comparative form the figures as of the end of and for the
previous year, reported on without qualification or exception by
Deloitte & Touche LLP or other independent public accountants of
nationally recognized standing (other than a qualification or
exception relating to a change in the application of accounting
principles used by such Facility Borrower and its subsidiaries, which
change shall be concurred with by Deloitte & Touche LLP or such other
accountants, as the case may be); and
(ii) as soon as available, but in any event within 60 days
after the end of each of the first three quarterly periods of each
fiscal year of such Facility Borrower, a copy of the unaudited
consolidated balance sheet of such Facility Borrower and its
subsidiaries as at the end of each such quarter and the related
unaudited consolidated statements of income and cash flows of such
Facility Borrower and its subsidiaries for the portion of the fiscal
year through such date, setting forth in each case in comparative form
such figures as of the end of and for the previous year, certified by
a Responsible Officer;
all such financial statements shall present fairly the consolidated financial
condition and results of operations of such Facility Borrower and its
Subsidiaries for the period referred to therein (subject, in the case of
interim statements to normal year-end adjustment) and shall be prepared in
reasonable detail and in accordance with GAAP applied consistently throughout
the periods reflected therein (except for such changes in accounting principles
as may be approved by such Responsible Officer and concurred in by such
Facility Borrower's independent public accountants and disclosed therein). The
reports referred to in this subsection 7.1 may, at the option of the relevant
Facility Borrower, be delivered via electronic mail to any E-Mail Bank.
7.2 Certificates; Other Information. Each Facility
Borrower will furnish (a) in the case of Chrysler, to the Administrative Agent
and each Bank or (b) in the case of Chrysler Canada, to the Canadian
Administrative Agent and each C$ Bank:
(i) concurrently with each delivery of financial statements
pursuant to subsection 7.1, a certificate of a Responsible Officer (x)
stating that such officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate and (y) in
the case of Chrysler, showing in reasonable detail the calculations
supporting such statement in respect of subsection 8.1;
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(ii) promptly after the same are sent, copies of all
financial statements and reports which Chrysler sends to its common or
preferred stockholders as a class, and promptly after the same are
filed, copies of all regular or periodic reports which such Facility
Borrower may file with the Securities and Exchange Commission, the
Ontario Securities Commission, or any successor or analogous
Governmental Authority; and
(iii) promptly, such additional financial and other
information as the relevant Agent or any relevant Bank may from time
to time reasonably request.
7.3 Maintenance of Corporate Existence; Compliance with
Applicable Law. Chrysler will (a) maintain its corporate existence, rights and
franchises necessary to continue its business and the corporate existence,
rights and franchises necessary to continue the business of each Significant
Subsidiary, provided that the foregoing shall not be a limitation on the right
of Chrysler to discontinue any operations if in the opinion of Chrysler such
discontinuance is in the best interest of Chrysler and would not materially
adversely affect the ability of either Facility Borrower to pay its debts as
they become due; and (b) comply, and cause each Significant Subsidiary to
comply, with all provisions of any applicable law, ordinance or governmental
rule or regulation (including, without limitation, any Environmental Law or
ERISA) to which it is subject, the failure to comply with which would in the
aggregate materially and adversely affect the business, operations, property or
financial condition of Chrysler and its Subsidiaries taken as a whole.
7.4 Notices. Chrysler (and in the case of clause (a)(i)
below, Chrysler Canada, but only in the case of any Default or Event of Default
relating to it) will (a) promptly give notice in writing to the Administrative
Agent (which shall promptly notify each Bank) of (i) the occurrence of any
Default or Event of Default, or of the occurrence of any event that would be an
Event of Default under paragraph (c) of Section 9 but for the proviso therein
contained, or (ii) the commencement of (x) any material litigation or
proceedings affecting Chrysler or any Significant Subsidiary or (y) any dispute
between Chrysler or any Significant Subsidiary and any Governmental Authority
or any other party if such litigation, proceedings or dispute would reasonably
be expected to result in any material adverse change in the business,
operations, property or financial condition of Chrysler or any of its
Significant Subsidiaries; and (b) as soon as possible, deliver to the
Administrative Agent (which shall promptly notify each Bank) copies of any
notices received by Chrysler of any failure or alleged failure to meet CAFE,
emission or safety requirements that Chrysler reasonably deems to be material
to the business, operations, property or financial condition of Chrysler.
SECTION 8. NEGATIVE COVENANTS
From and after the Effective Date, so long as the Commitments
remain in effect, any Facility Loans remain outstanding and unpaid or any other
amount is owing hereunder to any Bank or either Agent:
8.1 Indebtedness to Total Capitalization. Chrysler will
not permit the ratio of Indebtedness to Total Capitalization as of the last day
of any quarterly period of any fiscal year of Chrysler to be greater than 0.60
to 1.0.
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8.2 Limitation on Liens. Chrysler will not, nor will it
permit any Subsidiary (other than Eurostar and New Venture Gear) to, create,
assume or incur or suffer to be created, assumed or incurred or to exist any
Lien on any of its properties or assets, whether now owned or hereafter
acquired, provided, however, that the foregoing restriction shall not apply to
the following:
(a) Liens existing on the Effective Date and described on
Schedule II hereto;
(b) Liens on property or assets of any corporation existing
at the time such corporation becomes a Subsidiary;
(c) Liens in favor of Chrysler or any Wholly-owned
Subsidiary;
(d) Liens in favor of any Governmental Authority to secure
progress, advance or other payments pursuant to any contract or
provision of any statute;
(e) Liens (including, without limitation, the interest of the
lessor under any capital lease) on property or assets (i) existing at
the time of the acquisition thereof (including acquisition through
merger or consolidation) or (ii) to secure the payment of all or any
part of the purchase price or construction cost thereof or to secure
any Indebtedness incurred prior to, at the time of, or within 150
consecutive days after, the acquisition or completion of such property
or assets for the purpose of financing all or any part of the purchase
price or construction cost thereof;
(f) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Lien referred to in the foregoing clauses (a) through (e), inclusive;
provided that (i) no such extension, renewal or replacement
shall result in an increase in the liabilities secured thereby and (ii)
such extension, renewal or replacement Lien shall be limited to all or
a part of the same property that secured the Lien so extended, renewed
or replaced (plus additions, accessions, replacements and improvements
to such property);
(g) Liens in respect of judgments or awards or in respect of
attachments (i) in an amount less than $25,000,000 for a period of 150
consecutive days after the same shall have been incurred or (ii) which
shall have been stayed pending appeal or bonded and which Chrysler or
any Subsidiary, as the case may be, shall, at the time, in good faith
be contesting in appropriate proceedings;
(h) Liens on properties acquired for use as dealerships and
incurred in the ordinary course of business by Chrysler or any
Subsidiary;
(i) Liens in the form of pledges by any Chrysler Mexican
Subsidiary to financial institutions of Dollar or Mexican peso
deposits or Dollar or Mexican peso certificates of deposit owned by
such Chrysler Mexican Subsidiary to secure Dollar or Mexican peso
borrowings from such financial institutions by such Chrysler Mexican
Subsidiary;
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(j) Liens on (i) motor vehicles leased to employees and (ii)
employee lease payments in connection with the Chrysler employee lease
program to secure the purchase price of such motor vehicles;
(k) Assignments of rights under letters of credit issued in
connection with export transactions;
(l) Transfers with or without recourse to financial
institutions of receivables arising from sales of vehicles and parts
in the ordinary course of business;
(m) Permitted Encumbrances;
(n) Liens (including, without limitation, the interest of the
lessor under any capital lease) on property or assets of Foreign
Subsidiaries to secure the payment of all or any part of the purchase
price or construction cost thereof or to secure any Indebtedness
incurred for the purpose of financing all or any part of the purchase
price or construction cost thereof, provided that the aggregate
principal amount of the liabilities secured by such Liens shall not
exceed at any one time outstanding 10% of Total Shareholders' Equity;
and
(o) Liens (other than those permitted by clauses (a) through
(n) above) securing liabilities of Chrysler or any of its Subsidiaries
incurred after the Effective Date in an aggregate principal amount not
to exceed at any one time outstanding 10% of Total Shareholders'
Equity (as of the last day of the most recent fiscal quarter of
Chrysler).
8.3 Limitation on Sales and Leasebacks. Chrysler will
not, nor will it permit any Subsidiary (other than Eurostar and New Venture
Gear) to, enter into any agreement with any Person (not including Chrysler or
any Subsidiary) providing for the leasing by Chrysler or a Subsidiary of any
real or personal property which has been owned and operated by Chrysler or any
such Subsidiary for more than 150 consecutive days and which has been or is to
be sold or transferred by Chrysler or such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on
the security of such real or personal property (herein referred to as a "sale
and leaseback transaction") unless Chrysler or such Subsidiary would be
permitted to create Indebtedness secured by a Lien pursuant to subsection 8.2
on the real or personal property to be leased in an amount equal to such
Indebtedness, if any, with respect to such sale and leaseback transaction;
provided, that, in addition to the foregoing, Chrysler and each of its
Subsidiaries may enter into sale and leaseback transactions so long as the
aggregate book value of the real or personal property leased with respect
thereto does not exceed at any one time outstanding $100,000,000 for Chrysler
and all such Subsidiaries. Notwithstanding the provisions of this subsection,
a sale of property and a leaseback thereof pursuant to an operating lease (that
is, a lease which under GAAP would not be capitalized on the books of the
lessee) thereof shall not be deemed to be a sale and leaseback transaction.
8.4 Limitation on Fundamental Changes. (a) Chrysler
will not (i) merge or consolidate with any other Person (unless (x) Chrysler
shall be the continuing corporation and (y) immediately before and immediately
after giving effect to such merger or consolidation, no Default or Event of
Default shall have occurred and be continuing) or (ii) sell or convey all or
substantially all of its assets to any Person.
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(b) Chrysler Canada will not (i) amalgamate with any other
Person (unless (x) the amalgamated Person shall, if requested by the Canadian
Administrative Agent, execute and deliver a confirmation that it is a resident
of Canada for purposes of the Income Tax Act (Canada), a ratification of any
outstanding C$ Loans and a confirmation of its assumption of the Subsidiary
Borrower Obligations owing by Chrysler Canada and (y) immediately before and
immediately after giving effect to such amalgamation, no Default or Event of
Default shall have occurred and be continuing) or (ii) sell or convey all or
substantially all of its assets to any Person (other than Chrysler).
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Chrysler or any Subsidiary Borrower shall fail to pay any
principal of any Loan when due in accordance with the terms hereof or
of the relevant Foreign Currency Subfacility, as the case may be; or
fail to pay any interest on any Loan, or any other amount payable
hereunder or under any Foreign Currency Subfacility, within five
Business Days after any such amount becomes due in accordance with the
terms hereof or of the relevant Foreign Currency Subfacility, as the
case may be; or
(b) Any representation or warranty made or deemed made by
either Facility Borrower herein (or in any amendment hereto) or which
is contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect on or as of the date made
or deemed made in any respect which is materially adverse (i) in
relation to the business, operations, property or financial condition
of Chrysler and its Subsidiaries taken as a whole or (ii) to the
validity or enforceability of this Agreement or the rights and
remedies of the Administrative Agent or the Banks hereunder; or
(c) Chrysler shall default in the observance or performance
of any agreement contained in subsection 8.1 provided that so long as
no Facility Loans are outstanding hereunder while any such default is
continuing, such default shall not be a Default or become an Event of
Default hereunder until the earliest of (i) the date of furnishing
pursuant to subsection 7.1 of financial statements covering the fiscal
quarter next following the initial date as of which such default
occurred, which financial statements show that such default is
continuing as of the last day of such next following quarter, (ii) the
last day of the period (without regard to any grace period provided by
paragraph (e) of this Section 9) within which financial statements
covering the fiscal quarter next following the initial date of such
default are required to be furnished pursuant to subsection 7.1 if
such financial statements have not then been furnished, and (iii) the
close of business on the Business Day next preceding the date of
delivery by either Facility Borrower of a notice of intention to
borrow pursuant to subsection 2.2, 3.2 or 3.3 that is delivered after
the initial date as of which such default occurred and before the
delivery of financial statements covering the next following fiscal
quarter showing that such default has ceased to exist; or
(d) either Facility Borrower shall default in the observance
or performance of any agreement contained in subsections 8.2 through
8.4; or
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(e) either Facility Borrower shall default in the observance
or performance of any other agreement, covenant or term contained in
this Agreement, and such default shall continue unremedied for a
period of 30 days after receipt by such Facility Borrower of notice of
such default from either Agent or the Required Banks; or
(f) (i) Chrysler or any Significant Subsidiary shall default
in any payment or payments on any Indebtedness (other than the Loans),
which payment or payments at any one time aggregate more than
$25,000,000 (or its equivalent in another currency), beyond the period
of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created or (ii) Chrysler or any Significant
Subsidiary shall default in the observance or performance of any
agreement or condition relating to any Indebtedness (other than the
Loans) in the principal amount of more than $25,000,000 (or its
equivalent in another currency) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist with respect to any such Indebtedness
(in each case with respect to this clause (ii), excluding a default in
any payment on any Indebtedness), and the effect of such default,
event or condition is to cause such Indebtedness to become due prior
to its stated maturity (or in the case of Indebtedness constituting a
Guaranty, to require payment thereof); provided, however, that no
default of the type described in clause (i) above shall be deemed to
have occurred with respect to any Chrysler Mexican Subsidiary solely
by reason of a default by such Chrysler Mexican Subsidiary in any
payment of any Indebtedness denominated in a currency other than
Mexican pesos or any guarantee thereof that occurs solely as a result
of the inability of such Chrysler Mexican Subsidiary to obtain such
other currency with Mexican pesos; or
(g) (i) Chrysler or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing
or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or relating to 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 Chrysler or any of its Significant
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against Chrysler or any of
its Significant Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60
consecutive days; or (iii) there shall be commenced against Chrysler
or any of its Significant Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 consecutive days from the entry thereof; or
(iv) Chrysler or any of its Significant Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in clause (i), (ii) or
(iii) above; or (v) Chrysler or any of its Significant Subsidiaries
shall admit in writing its inability to pay its debts generally as
they become due; or
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(h) one or more final judgments or decrees not subject to
appeal shall be entered against Chrysler or any of its Subsidiaries
involving in the aggregate a liability (to the extent not paid or
covered by insurance) of $25,000,000 (or its equivalent in another
currency) or more and shall have been unpaid for a period of 30
consecutive days;
then, and in any such event, (a) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (g) above with respect to either
Facility Borrower, automatically (x) the Commitments shall immediately
terminate and (y) the Loans (including the face amount of all Bankers'
Acceptances accepted by any C$ Bank), with accrued interest thereon, and all
other amounts owing under this Agreement and the Foreign Currency Subfacilities
shall immediately become due and payable, and (b) if such event is any other
Event of Default, either or both of the following actions may be taken: (i)
with the consent of the Required Banks, the Administrative Agent may, or upon
the request of the Required Banks, the Administrative Agent shall, by notice to
each Facility Borrower, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the
consent of the Required Banks, the Administrative Agent may, or upon the
request of the Required Banks, the Administrative Agent shall, by notice of
default to each Facility Borrower, declare the Loans (including the face amount
of all Bankers' Acceptances accepted by any C$ Bank), with accrued interest
thereon, and all other amounts owing under this Agreement and the Foreign
Currency Subfacilities to be due and payable forthwith, whereupon the same
shall immediately become due and payable. Except as expressly provided above
in this Section 9, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 10. THE AGENTS
10.1 Appointment. Each Bank hereby irrevocably designates
and appoints the Administrative Agent as the administrative agent of such Bank
under this Agreement, and each such Bank irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Each C$ Bank hereby irrevocably designates and appoints the Canadian
Administrative Agent as the Canadian administrative agent of such Bank under
this Agreement, and each C$ Bank hereby irrevocably authorizes the Canadian
Administrative Agent as Canadian administrative agent for such Bank to take
such action on its behalf under the provisions of this Agreement and to
exercise such powers and perform such duties as are expressly delegated to the
Canadian Administrative Agent by the terms of this Agreement, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, neither 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
Agreement or any Foreign Currency Subfacility or otherwise exist against either
Agent.
10.2 Delegation of Duties. Each Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. Neither Agent shall be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
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10.3 Exculpatory Provisions. Neither Agent nor any of
their respective officers, directors, employees, agents, attorneys- in-fact or
affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by either Facility Borrower, any Foreign
Subsidiary Borrower or any Subsidiary or any officer thereof contained in this
Agreement, any Foreign Currency Subfacility or in any certificate, report,
statement or other document referred to or provided for in, or received by
either Agent under or in connection with, this Agreement or any Foreign
Currency Subfacility or for the sufficiency of this Agreement or any Foreign
Currency Subfacility or for any failure of either Facility Borrower, any
Foreign Subsidiary Borrower or any Subsidiary to perform its obligations
hereunder or thereunder. Neither 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 Agreement or any Foreign
Currency Subfacility, or to inspect the properties, books or records of either
Facility Borrower, any Foreign Subsidiary Borrower or any Subsidiary.
10.4 Reliance by Agents. Each 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 Chrysler), independent accountants
and other experts selected by the relevant Agent. Each Agent shall be fully
justified in failing or refusing to take any action under this Agreement unless
it shall first receive such advice or concurrence of the Required Banks (or, if
so required by this Agreement, all of the Banks) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Banks (or, if so required by this
Agreement, all of the Banks), and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Banks.
10.5 Notice of Default. Neither Agent shall be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Bank or either Facility
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that either Agent receives such a notice, such Agent shall give notice thereof
to the Banks, and, if such notice is received from a Bank, such Agent shall
give notice thereof to each Facility Borrower. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks (or, if so required by this
Agreement, all of the Banks); provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Banks.
10.6 Non-Reliance on Agents and other Banks. Each Bank
expressly acknowledges that neither Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any representations
or warranties to it and that no act by either Agent hereafter taken, including
any review of the affairs of either Facility Borrower, shall be deemed to
constitute any representation
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or warranty by either Agent to any Bank. Each Bank represents to each Agent
that it has, independently and without reliance upon either 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 Facility
Borrowers and any Foreign Subsidiary Borrower and made its own decision to make
its Loans and enter into this Agreement and any Foreign Currency Subfacility.
Each Bank also represents that it will, independently and without reliance upon
either 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
Agreement or any Foreign Currency Subfacility 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 Facility Borrowers
and any Foreign Subsidiary Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Banks by the relevant Agent
hereunder, neither Agent shall have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of either Facility
Borrower or any Foreign Subsidiary Borrower which may come into the possession
of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7 Indemnification. The Banks (or, in the case of the
indemnity in favor of the Canadian Administrative Agent, the C$ Banks) agree to
indemnify each Agent (to the extent not reimbursed by either Facility Borrower
and without limiting the obligation of each Facility Borrower to do so),
ratably according to the respective amounts of their Commitment Percentages
(or, in the case of the indemnity in favor of the Canadian Administrative
Agent, the C$ Banks' respective C$ Commitment Percentages) in effect on the
date on which indemnification is sought under this subsection 10.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated, ratably in accordance with such Commitment Percentages (or C$
Commitment Percentages) immediately prior to such date), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Loans) be imposed on, incurred by or asserted against such Agent
in any way relating to or arising out of this Agreement or any Foreign Currency
Subfacility, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing, provided that no Bank shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or willful
misconduct. The agreements in this subsection 10.7 shall survive the
termination of this Agreement or any Foreign Currency Subfacility, the
termination of the Commitments and the payment of the Loans and all other
amounts payable hereunder or under any Foreign Currency Subfacility.
10.8 Agents in their Individual Capacity. Each Agent and
its affiliates may make loans to, accept deposits from and generally engage in
any kind of business with each Facility Borrower and any Foreign Subsidiary
Borrower as though such Agent was not an Agent hereunder. With respect to its
Loans made or renewed by it, each Agent shall have the same rights and powers
under this Agreement as any Bank and may exercise the same as though it were
not an Agent, and the terms "Bank" and "Banks" shall include each Agent in its
individual capacity.
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10.9 Successor Agents. Each Agent may resign as an Agent
upon 30 days' notice to the Banks and the Facility Borrowers and may be removed
at any time with or without cause by the Required Banks. If an Agent shall
resign or be removed as an Agent under this Agreement, then either (a) the
Required Banks shall appoint from among the Banks a successor administrative
agent or Canadian administrative agent, as applicable, for the Banks, which
successor agent shall be approved by Chrysler (unless an Event of Default shall
have occurred and be continuing), or (b) if a successor agent shall not have
been so appointed and approved within the thirty-day period following such
Agent's notice to the Banks or its removal as Agent, such Agent shall then
appoint a successor agent who shall serve as Administrative Agent or Canadian
Administrative Agent, as applicable, until such time, if any, as the Required
Banks appoint, and Chrysler approves (unless an Event of Default shall have
occurred and be continuing), a successor agent as provided in (a) above. Upon
its appointment pursuant to either clause (a) or (b) above, such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent or the Canadian Administrative Agent, as applicable, and the terms
"Administrative Agent", "Canadian Administrative Agent" and "Agent", as
applicable, shall mean such successor agent effective upon its appointment, and
the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or
any of the parties to this Agreement. After any retiring or removed Agent's
resignation or removal hereunder as Agent, the provisions of this Section 10
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
SECTION 11. FOREIGN CURRENCY SUBFACILITIES
11.1 Terms of Foreign Currency Subfacilities. (a) Subject
to the provisions of this Section 11, each Bank hereby agrees that Chrysler may
in its discretion from time to time designate any credit facility to which any
one or more Foreign Borrowers and any one or more Banks is a party as a
"Foreign Currency Subfacility", with the consent of each such Bank in its sole
discretion, and subject to confirmation by the Administrative Agent that such
facility complies with the requirements of this Section 11, by delivering a
Foreign Currency Subfacility Addendum to the Administrative Agent, executed by
Chrysler and any relevant Foreign Subsidiary Borrower and executed or
acknowledged in writing by each such Bank, provided, that on the effective date
of such designation (i) no Default or Event of Default shall have occurred and
be continuing and (ii) Chrysler shall have agreed in writing to pay to the
Administrative Agent an administration fee in respect of such Foreign Currency
Subfacility in an amount mutually acceptable to Chrysler and the Administrative
Agent. Each Foreign Currency Subfacility Addendum shall specify whether the
relevant Foreign Currency Subfacility is a Foreign Committed Subfacility or a
Foreign Uncommitted Subfacility. Except as otherwise provided in this Section
11, the terms and conditions of each Foreign Currency Subfacility shall be
determined by mutual agreement of the relevant Foreign Borrower(s) and Bank(s).
The documentation governing each Foreign Currency Subfacility shall contain an
express acknowledgement that such Foreign Currency Subfacility shall be subject
to the provisions of this Section 11. Each Bank party to a Foreign Currency
Subfacility must be a US$ Bank or a subsidiary, affiliate, branch or agency of
a US$ Bank, and each party hereto and, by agreeing to any Foreign Currency
Subfacility designation as contemplated hereby, any such subsidiary, affiliate,
branch or agency, acknowledges and agrees that each reference in this Agreement
to any Bank shall, to the extent applicable, be deemed to be a reference to
such subsidiary, affiliate, branch or agency. In the event of any
inconsistency between the terms of this Agreement and the terms of any Foreign
Currency Subfacility, the terms of this Agreement shall prevail. It is
understood that the provisions of subsections 4.9, 4.10 and 4.11 do not apply
to any Foreign Currency Subfacility or any Loans made thereunder.
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(b) The documentation governing each Foreign Currency
Subfacility shall set forth the maximum amount (expressed in Dollars) available
to be borrowed from each Bank thereunder (each, a "Foreign Currency Subfacility
Maximum Borrowing Amount"). In no event shall (i) the aggregate of all Foreign
Currency Subfacility Maximum Borrowing Amounts in respect of all Banks at any
time exceed $400,000,000, (ii) the aggregate of all Foreign Currency
Subfacility Maximum Borrowing Amounts in respect of any Bank at any time exceed
60% of such Bank's U.S. Commitment, or (iii) the Aggregate U.S./Foreign
Extensions of Credit of any Bank at any time exceed such Bank's U.S.
Commitment. The making of Foreign Currency Loans by a Bank under a Foreign
Currency Subfacility shall under no circumstances reduce the amount available
to be borrowed from such Bank under any other Foreign Currency Subfacility to
which such Bank is a party.
(c) Except as otherwise required by applicable law, in no
event shall the Banks party to a Foreign Currency Subfacility have the right to
accelerate the Foreign Currency Loans outstanding thereunder, or to terminate
their commitments (if any) to make such Loans prior to the stated termination
date in respect thereof, except, in each case, in connection with an
acceleration of the Loans or a termination of the Commitments pursuant to
Section 9 of this Agreement, provided, that nothing in this paragraph (c) shall
be deemed to require any Bank to make a Foreign Currency Loan if the applicable
conditions precedent to the making of such Foreign Currency Loan set forth in
the relevant Foreign Currency Subfacility have not been satisfied. No Foreign
Currency Loan may be made under a Foreign Currency Subfacility if a Default or
Event of Default shall have occurred and be continuing or would result
therefrom.
(d) The relevant Banks, or, if so specified in the relevant
Foreign Currency Subfacility, an agent acting on their behalf, shall furnish to
the Administrative Agent, immediately upon its request, a statement setting
forth the outstanding Foreign Currency Loans made under such Foreign Currency
Subfacility. The Administrative Agent shall be entitled to rely on any such
statement without further investigation.
(e) If any amendment, supplement or other modification to a
Foreign Currency Subfacility shall (i) add a Bank as a party thereto or (ii)
change the Foreign Currency Subfacility Maximum Borrowing Amount of any Bank
party thereto, Chrysler shall promptly furnish an appropriately revised Foreign
Currency Subfacility Addendum, executed by Chrysler, any relevant Foreign
Subsidiary Borrower and the affected Banks (or any agent acting on their
behalf), to the Administrative Agent.
(f) Chrysler may terminate its designation of a facility as a
Foreign Currency Subfacility, with the consent of each Bank party thereto in
its sole discretion, by written notice to the Administrative Agent, which
notice shall be executed by Chrysler, any relevant Foreign Subsidiary Borrower
and each Bank party to such Foreign Currency Subfacility (or any agent acting
on their behalf). Once notice of such termination is received by the
Administrative Agent, such Foreign Currency Subfacility and the loans and other
obligations outstanding thereunder shall immediately cease to be subject to the
terms of this Agreement (including the guarantee of Chrysler contained in
Section 12).
(g) Nothing in this Section 11 shall be deemed to limit the
ability of Chrysler or any of the Subsidiaries to enter into credit facilities
which do not constitute Foreign Currency Subfacilities.
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11.2 Currency Fluctuations, etc. (a) No later than 2:00
P.M., New York City time, on each Foreign Calculation Date, the Administrative
Agent shall (i) determine the Foreign Exchange Rate as of such Foreign
Calculation Date with respect to each Foreign Currency covered by a Foreign
Currency Subfacility and (ii) give notice thereof to the relevant Banks and
Chrysler. The Foreign Exchange Rates so determined shall become effective on
the first Business Day immediately following the relevant Foreign Calculation
Date (a "Foreign Reset Date") and shall remain effective until the next
succeeding Foreign Reset Date. If on any Foreign Calculation Date a Foreign
Exchange Rate cannot be determined with respect to any Foreign Currency, such
Foreign Exchange Rate shall remain at the applicable rate effective as of the
most recent Foreign Reset Date with respect to which such Foreign Exchange Rate
was available until such Foreign Exchange Rate can once again be determined.
(b) No later than 2:00 P.M., New York City time, on each
Foreign Reset Date and each Borrowing Date, the Administrative Agent shall (i)
determine the US$ Equivalent of the Foreign Currency Loans then outstanding
under each Foreign Currency Subfacility (after giving effect to any Foreign
Currency Loans to be made or repaid on such date) and (ii) notify the relevant
Banks and Chrysler of the results of such determination.
(c) If, on any Foreign Reset Date or any Borrowing Date
(after giving effect to (i) any Loans to be made or repaid on such date and
(ii) any amendment, supplement or other modification to any Foreign Currency
Subfacility effective on such date of which the Administrative Agent has
received notice), the Aggregate U.S./Foreign Extensions of Credit of any Bank
exceed 105% of the U.S. Commitment of such Bank, then, within ten Business Days
after notice thereof to Chrysler from the Administrative Agent, Chrysler shall
cause the relevant Foreign Borrower to reduce the Aggregate Foreign Extensions
of Credit of such Bank in an amount such that, after giving effect thereto, the
Aggregate U.S./Foreign Extensions of Credit of such Bank shall be equal to or
less than the U.S. Commitment of such Bank.
(d) If, on any Foreign Reset Date or any Borrowing Date
(after giving effect to (i) any Foreign Currency Loans to be made or repaid on
such date and (ii) any amendment, supplement or other modification to any
Foreign Currency Subfacility effective on such date of which the Administrative
Agent has received notice), the US$ Equivalent of the Foreign Currency Loans
made by any Bank outstanding under any Foreign Currency Subfacility to which
such Bank is a party exceeds 105% of the Foreign Currency Subfacility Maximum
Borrowing Amount of such Bank with respect thereto, then Chrysler shall cause
the relevant Foreign Borrower, within ten Business Days after notice thereof to
Chrysler from the Administrative Agent, to (i) increase the Foreign Currency
Subfacility Maximum Borrowing Amount of such Bank with respect to such Foreign
Currency Subfacility (subject to the approval of such Bank) in accordance with
subsection 11.1(e) and/or (ii) prepay such Foreign Currency Loans in accordance
with the terms of such Foreign Currency Subfacility in an aggregate amount such
that, after giving effect thereto, the US$ Equivalent of such Foreign Currency
Loans shall be equal to or less than such Bank's Foreign Currency Subfacility
Maximum Borrowing Amount with respect to such Foreign Currency Subfacility.
(e) The Administrative Agent shall promptly furnish each
affected Bank with a copy of any notice described in subsection 11.2(c) or
11.2(d) which has been delivered to Chrysler by the Administrative Agent.
SECTION 12. GUARANTEE
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12.1 Guarantee. In order to induce the Agents and the Banks
to execute and deliver this Agreement, to become a party to any Foreign
Currency Subfacility and to make or maintain the Loans, and in consideration
thereof, Chrysler hereby unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, to the Administrative Agent, for the ratable
benefit of the Agents and the Banks, the prompt and complete payment and
performance by each Subsidiary Borrower when due (whether at stated maturity,
by acceleration or otherwise) of the Subsidiary Borrower Obligations. The
guarantee contained in this Section 12, subject to subsection 12.5, shall
remain in full force and effect until the Subsidiary Borrower Obligations are
paid in full and the Commitments are terminated, notwithstanding that from time
to time prior thereto any Subsidiary Borrower may be free from any Subsidiary
Borrower Obligations.
Chrysler agrees that whenever, at any time, or from time to
time, it shall make any payment to either Agent or any Bank on account of its
liability under this Section 12, it will notify the Administrative Agent (and,
in the cases of payments to it, the Canadian Administrative Agent) and such
Bank in writing that such payment is made under the guarantee contained in this
Section 12 for such purpose. No payment or payments made by any Subsidiary
Borrower or any other Person or received or collected by either Agent or any
Bank from any Subsidiary Borrower or any other Person by virtue of any action
or proceeding or any setoff or appropriation or application, at any time or
from time to time, in reduction of or in payment of the Subsidiary Borrower
Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of Chrysler under this Section 12 which, notwithstanding any such
payment or payments, shall remain liable for the unpaid and outstanding
Subsidiary Borrower Obligations until, subject to subsection 12.5, the
Subsidiary Borrower Obligations are paid in full and the Commitments are
terminated.
12.2 No Subrogation, Contribution, Reimbursement or
Indemnity. Notwithstanding anything to the contrary in this Section 12,
Chrysler hereby irrevocably waives (a) all rights which may have arisen in
connection with the guarantee contained in this Section 12 to be subrogated to
any of the rights (whether contractual, under the Bankruptcy Code, including
Section 509 thereof, under common law or otherwise) of either Agent or any Bank
against any Subsidiary Borrower or against either Agent or any Bank for the
payment of the Subsidiary Borrower Obligations and (b) all contractual, common
law, statutory and other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against any Subsidiary Borrower or any
other Person which may have arisen in connection with the guarantee of the
Subsidiary Borrower Obligations contained in this Section 12, in each case
until all Subsidiary Borrower Obligations of such Subsidiary Borrower have been
paid in full. So long as the Subsidiary Borrower Obligations remain
outstanding, if any amount shall be paid by or on behalf of any Subsidiary
Borrower or any other Person to Chrysler on account of any of the rights waived
in this subsection 12.2, such amount shall be held by Chrysler in trust,
segregated from other funds of Chrysler, and shall, forthwith upon receipt by
Chrysler, be turned over to the Administrative Agent in the exact form received
by Chrysler (duly indorsed by Chrysler to the Administrative Agent, if
required), to be applied against the Subsidiary Borrower Obligations, whether
matured or unmatured, in such order as the Administrative Agent may determine.
The provisions of this subsection 12.2 shall survive the term of the guarantee
contained in this Section 12 and the payment in full of the Subsidiary Borrower
Obligations and the termination of the Commitments.
12.3 Amendments, etc. with respect to the Subsidiary Borrower
Obligations. Chrysler shall remain obligated under this Section 12
notwithstanding that, without any reservation of rights against Chrysler, and
without notice to or further assent by Chrysler, any demand for payment of or
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reduction in the principal amount of any of the Subsidiary Borrower Obligations
made by either Agent or any Bank may be rescinded by such Agent or such Bank,
and any of the Subsidiary Borrower Obligations continued, and the Subsidiary
Borrower Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by either Agent or any Bank, and this Agreement and any other
documents executed and delivered in connection herewith or in connection with
any Foreign Currency Subfacility may be amended, modified, supplemented or
terminated, in whole or in part, as may be deemed advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by
either Agent or any Bank for the payment of the Subsidiary Borrower Obligations
may be sold, exchanged, waived, surrendered or released. No Agent or Bank
shall have any obligation to protect, secure, perfect or insure any lien at any
time held by it as security for the Subsidiary Borrower Obligations or for the
guarantee contained in this Section 12 or any property subject thereto.
12.4 Guarantee Absolute and Unconditional. Chrysler waives
any and all notice of the creation, renewal, extension or accrual of any of the
Subsidiary Borrower Obligations and notice of or proof of reliance by either
Agent or any Bank upon the guarantee contained in this Section 12 or acceptance
of the guarantee contained in this Section 12; the Subsidiary Borrower
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon the guarantee contained in this Section 12; and all dealings
between Chrysler or the Subsidiary Borrowers, on the one hand, and the Agents
and the Banks, on the other, shall likewise be conclusively presumed to have
been had or consummated in reliance upon the guarantee contained in this
Section 12. Chrysler waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon Chrysler or any
Subsidiary Borrower with respect to the Subsidiary Borrower Obligations. The
guarantee contained in this Section 12 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of this Agreement, any Foreign Currency Subfacility,
any of the Subsidiary Borrower Obligations or any collateral security therefor
or guarantee or right of offset with respect thereto at any time or from time
to time held by either Agent or any Bank, (b) the legality under applicable
Requirements of Law of repayment by the relevant Subsidiary Borrower of any
Subsidiary Borrower Obligations or the adoption of any Requirement of Law
purporting to render any Subsidiary Borrower Obligations null and void, (c) any
defense, setoff or counterclaim (other than a defense of payment or performance
by the applicable Subsidiary Borrower) which may at any time be available to or
be asserted by Chrysler or any Subsidiary Borrower against either Agent or any
Bank, or (d) any other circumstance whatsoever (with or without notice to or
knowledge of Chrysler or any Subsidiary Borrower) which constitutes, or might
be construed to constitute, an equitable or legal discharge of any Subsidiary
Borrower for any Subsidiary Borrower Obligations, or of Chrysler under the
guarantee contained in this Section 12, in bankruptcy or in any other instance.
When either Agent or any Bank is pursuing its rights and remedies under this
Section 12 against Chrysler, such Agent or Bank may, but shall be under no
obligation to, pursue such rights and remedies as it may have against any
Subsidiary Borrower or any other Person or against any collateral security or
guarantee for the Subsidiary Borrower Obligations or any right of offset with
respect thereto, and any failure by either Agent or any Bank to pursue such
other rights or remedies or to collect any payments from any Subsidiary
Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release
of any Subsidiary Borrower or any such other Person or of any such collateral
security, guarantee or right of
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offset, shall not relieve Chrysler of any liability under this Section 12, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Agents and the Banks against Chrysler.
12.5 Reinstatement. The guarantee contained in this Section
12 shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Subsidiary Borrower
Obligations is rescinded or must otherwise be restored or returned by either
Agent or any Bank upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Subsidiary Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, any Subsidiary Borrower or any substantial part of its property,
or otherwise, all as though such payments had not been made.
12.6 Payments. (a) Chrysler hereby agrees that any payments
in respect of the Subsidiary Borrower Obligations pursuant to this Section 12
will be paid without setoff or counterclaim in C$ (in the case of Subsidiary
Borrower Obligations arising under this Agreement) or, at the option of the
relevant Bank(s), in Dollars or in the relevant Foreign Currency (in the case
of Subsidiary Borrower Obligations arising under any Foreign Currency
Subfacility), to (unless otherwise specified by the Administrative Agent): (a)
the Canadian Administrative Agent at the office of the Canadian Administrative
Agent specified in subsection 13.2 (in the case of Subsidiary Borrower
Obligations arising under this Agreement) or (b) the relevant Bank(s) (or an
agent acting on their behalf) at the office specified for payments under the
relevant Foreign Currency Subfacility or such other office as shall have been
specified by the relevant Bank(s) in each case to the extent permitted by
applicable law (in the case of Subsidiary Borrower Obligations arising under
any Foreign Currency Subfacility).
(b) In the event that any law, regulation, treaty or
directive (whether or not in effect on the date hereof), shall require any
Taxes to be withheld or deducted from any amount payable to any Bank under the
guarantee contained in this Section 12, upon notice by such Bank to Chrysler
(with a copy to the Administrative Agent) to the effect that as a result of
such law, rule, regulation, treaty or directive, Taxes are being withheld or
deducted from amounts payable to such Bank under the guarantee contained in
this Section 12, Chrysler will pay to such Bank (or, if applicable, the
relevant Agent or any other agent acting on such Bank's behalf) additional
amounts (in the relevant currency) so that such additional amounts, together
with amounts otherwise payable under the guarantee contained in this Section
12, will yield to such Bank, after deduction from such increased amount of all
Taxes required to be withheld or deducted therefrom, an amount that would be
equal to the amount that such Bank would have received under the guarantee
contained in this Section 12 had no such withholding or deduction been required
calculated after taking into account all applicable Taxes and Other Taxes. If
Chrysler fails to pay any Taxes when due following notification by any Bank as
provided above, Chrysler shall indemnify such Bank for any incremental taxes,
interest or penalties that may become payable by any Bank as a result of any
such failure by Chrysler to make such payment. Within 30 days after the
payment by Chrysler of any Taxes withheld or deducted from any amount payable
to any Bank under the guarantee contained in this Section 12, Chrysler will
furnish to such Bank (with a copy to the Administrative Agent), the original or
a certified copy of a receipt evidencing payment thereof.
(c) If a payment made by Chrysler has been increased by an
amount referred to in subsection 12.6(b), and a Bank or any subsidiary, parent
or other affiliate of such Bank is able to apply for or otherwise take
advantage of any tax credit, deduction in computing income or similar benefit
(a "Tax Credit") by reason of any withholding or deduction made by Chrysler in
respect of the amount of
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the increase, then, subject to subsection 12.6(d), such Bank will
use reasonable efforts to obtain, or cause such affiliate to obtain, the Tax
Credit and such Bank, when it or its affiliate realizes such Tax Credit
(whether by way of reducing taxes payable, receiving a tax refund, or
otherwise), shall, subject to subsection 12.6(d), repay to Chrysler such
amount, if any (not exceeding the amount of the increase) as is reasonably
determined in the absolute and uncontrolled discretion of such Bank to be equal
to the net after-tax value to such Bank and its affiliate, as the case may be,
of such part of the Tax Credit as is reasonably attributable to such
withholding or deduction, having regard to all dealings giving rise to similar
credits, deductions or benefits in relation to the same tax period and to the
cost of obtaining the same. Any such reimbursement shall be conclusive
evidence, absent manifest error, of the amount due to Chrysler and shall be
accepted by it in full and final settlement of its rights of reimbursement
hereunder.
(d) Notwithstanding subsection 12.6(c), (i) nothing therein
contained shall interfere with the right of a Bank to arrange its tax affairs
in whatever manner it deems fit and, in particular, no Bank shall be under any
obligation to claim relief from its corporate profits or similar tax liability
in respect of any such deduction or withholding in priority to any other
reliefs, claims, credits or deductions available to it and (ii) a Bank shall
not be obligated to disclose to Chrysler any information regarding its tax
affairs or tax computations.
12.7 Judgments Relating to Guarantee. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
due under the guarantee contained in this Section 12 in one currency into
another currency, Chrysler agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the
relevant Bank (or agent acting on its behalf) could purchase the first currency
with such other currency for the first currency on the Banking Day immediately
preceding the day on which final judgment is given.
(b) The obligations of Chrysler in respect of any sum due
under the guarantee contained in this Section 12 shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than that in which such
sum is denominated in accordance with this Section 12 (the "Agreement
Currency"), be discharged only to the extent that, on the Banking Day following
receipt by any Bank (or agent acting on its behalf) (the "Applicable Creditor")
of any sum adjudged to be so due in the Judgment Currency, the Applicable
Creditor may in accordance with normal banking procedures in the relevant
jurisdiction purchase the Agreement Currency with the Judgment Currency; if the
amount of the Agreement Currency so purchased is less than the sum originally
due to the Applicable Creditor in the Agreement Currency, Chrysler agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss, provided, that if the amount of the
Agreement Currency so purchased exceeds the sum originally due to the
Applicable Creditor, the Applicable Creditor agrees to remit such excess to
Chrysler. The obligations of Chrysler contained in this subsection 12.7 shall
survive the termination of the guarantee contained in this Section 12 and the
payment of all amounts owing hereunder.
12.8 Independent Obligations. The obligations of Chrysler
under the guarantee contained in this Section 12 are independent of the
obligations of each Subsidiary Borrower, and a separate action or actions may
be brought and prosecuted against Chrysler whether or not the relevant
Subsidiary Borrower be joined in any such action or actions. Chrysler waives,
to the full extent
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permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof.
SECTION 13. MISCELLANEOUS
13.1 Amendments and Waivers. With the written consent of
the Required Banks, the Administrative Agent and the Facility Borrowers may,
from time to time, enter into written amendments, supplements or modifications
hereto for the purpose of adding any provisions to this Agreement or changing
in any manner the rights of the Banks or of either Facility Borrower hereunder
or thereunder, and with the consent of the Required Banks the Administrative
Agent on behalf of the Banks may execute and deliver to the Facility Borrowers
a written instrument waiving, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
this Agreement or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (a) extend the maturity of any Facility Loan, or reduce the
rate or extend the time of payment of interest thereon, or reduce or forgive
the principal amount thereof, or reduce the rate of payment of any Facility Fee
or Acceptance Fee payable hereunder or increase the amount or extend the term
of any Bank's Commitment or amend, modify or waive any provision of this
subsection 13.1 or reduce the percentage specified in the definition of
Required Banks, Required U.S. Banks or Required Canadian Banks, or consent to
the assignment or transfer by either Facility Borrower of any of its rights and
obligations under this Agreement, in each case without the written consent of
each Bank directly affected thereby, (b) release Chrysler from its obligations
under the guarantee contained in Section 12 without the prior written consent
of each C$ Bank and each Bank party to a Foreign Currency Subfacility or (c)
amend, modify or waive any provision of Section 10 without the written consent
of each Agent directly affected thereby. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Banks
and shall be binding upon each Facility Borrower, the Banks and each Agent. In
the case of any waiver, each Facility Borrower, the Banks and each Agent shall
be restored to their former position and rights hereunder, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon. The Administrative Agent
shall give the Canadian Administrative Agent prompt written notice of any
waiver, amendment, supplement or modification entered into pursuant to this
subsection 13.1.
13.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing, by
telecopy or, in the case of any E-Mail Bank, by electronic mail, and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered by hand or when deposited in the mail, first class or air
postage prepaid, or, in the case of telecopied notice, when telecopied, receipt
acknowledged, or, in the case of electronic mail, when sent, electronic
confirmation of receipt received; addressed as follows in the case of the
Facility Borrowers, the Canadian Administrative Agent and the Administrative
Agent, and as set forth in an administrative questionnaire delivered to the
Administrative Agent in the case of each Bank, or to such address or other
address as may be hereafter notified by the respective parties hereto:
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Chrysler: Chrysler Corporation
1000 Chrysler Drive
Auburn Hills, Michigan 48326-2766
Attention: Treasurer's Office
Telecopy: (810) 512-1766
Chrysler Canada: Chrysler Canada Ltd.
2450 Chrysler Center
Windsor, Ontario
Canada N9A4H6
Attention: Treasurer
Telecopy: (519) 973-4310
The Administrative
Agent: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Andris Kalnins
Telecopy: (212) 270-5127
With a copies to: The Chase Manhattan Bank Loan
and Agency Services Group
One Chase Manhattan Plaza
New York, New York 10081
Attention: Sandra Miklave, Account Manager
Telecopy: (212) 622-0002
The Canadian
Administrative
Agent: Royal Bank of Canada
Loan Structuring and Syndications
Royal Bank Plaza, South Tower
200 Bay Street
Toronto, Ontario
Canada M5J 2J5
Attention: Manager, Business Operations
Telecopy: (416) 974-2407
provided that any notice, request or demand to or upon an Agent pursuant to
subsection 2.2, 2.3, 2.5, 3.2, 3.3, 3.4, 4.5 or 4.6 shall not be effective
until received.
13.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of either 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.
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13.4 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 Agreement.
13.5 Payment of Expenses and Taxes. Each of Chrysler and,
as applicable, Chrysler Canada, agrees:
(a) to pay or reimburse the Administrative Agent for all
reasonable out-of-pocket costs and expenses incurred in connection
with the preparation and execution of, and any amendment, supplement
or modification to, this Agreement, and any other documents prepared
in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of Simpson Thacher &
Bartlett, special counsel to the Administrative Agent;
(b) to pay or reimburse each Bank and each Agent for all
reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, and
any such other documents, including, without limitation, the
reasonable fees and disbursements of one firm of special counsel in
each of the United States and Canada to the Agents and the Banks; and
(c) to pay and reimburse (i) each Bank for any payments made
by such Bank to either Agent pursuant to the provisions of subsection
10.7 and (ii) each Agent for any and all liabilities, expenses or
disbursements incurred by it which pursuant to the provisions of
subsection 10.7 are the subject of indemnification payments from the
Banks to the extent that such Agent, for whatever reason, did not
receive such indemnification payments from any Bank or Banks.
The agreements in this subsection 13.5 shall survive
termination of this Agreement, termination of the Commitments and the payment
of the Loans and all other amounts payable hereunder.
13.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure to the
benefit of the Facility Borrowers, the Banks, the Agents, and their respective
successors and assigns, except that no Facility Borrower may assign or transfer
any of its rights or obligations under this Agreement without the prior written
consent of each Bank (in the case of Chrysler) or all of the C$ Banks (in the
case of Chrysler Canada).
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more Commercial Banks ("Participants") participating interests in any Loan
owing to such Bank, any Commitment of such Bank or any other interest of such
Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Bank shall remain
solely responsible for the performance thereof, such Bank shall remain the
holder of any such Loan for all purposes under this Agreement, and Chrysler and
the Administrative Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this
Agreement, provided, that the terms of any participation agreement or
certificate relating to any such participation shall prohibit any
subparticipations by such
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Participant and provided, further any such participation agreement or
certificate shall permit the Bank granting such participations the right to
consent to waivers, amendments or supplements to this Agreement without the
consent of such Participant except in the case of (a) waivers of any Default or
Event of Default described in Section 9(a), and (b) any amendment or
modification extending the maturity of any Loan, or reducing the rate or
extending the time of payment of interest thereon, or reducing the principal
amount thereof or reducing the rate of payment of the Facility Fee payable
hereunder, in each case to the extent such Participant is directly affected
thereby. Chrysler agrees that if amounts outstanding under this Agreement are
due or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall, to the
extent permitted by applicable law and with the consent of the Required Banks,
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Banks the proceeds
thereof as provided in subsection 13.8 as fully as if it were a Bank hereunder.
Chrysler also agrees that each Participant shall be entitled to the benefits of
subsections 4.9 and 4.11 with respect to its participation in the Commitments
and the Loans outstanding from time to time as if it were a Bank; provided
that, no Participant shall be entitled to receive any greater amount pursuant
to subsections 4.9 and 4.11 than the transferor Bank would have been entitled
to receive in respect of the amount of the participation transferred by such
transferor Bank to such Participant had no such transfer occurred.
(c) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Bank or any affiliate thereof or, with the consent
of Chrysler and the Administrative Agent (which shall not be unreasonably
withheld by either Chrysler or the Administrative Agent, as the case may be),
to an additional Commercial Bank (an "Assignee") all or any part of its rights
and obligations under this Agreement pursuant to an Assignment and Acceptance
(each, an "Assignment and Acceptance"), substantially in the form of Exhibit
E-1, executed by such Assignee, such assigning Bank (and, in the case of an
Assignee that is not then a Bank or an affiliate thereof, by Chrysler and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the relevant Register; provided, however, that a
Bank may not assign its rights or obligations under this Agreement unless and
until (i) if such assigning Bank is not assigning all of its rights and
obligations under this Agreement, the aggregate principal amount of such Bank's
obligations (which may constitute U.S. Commitments and/or Canadian Commitments)
hereunder so assigned shall be in an aggregate amount of $10,000,000 or greater
(unless, at Chrysler's discretion, a lesser amount is mutually agreed upon
between Chrysler and such Bank); (ii) if such assigning Bank is not assigning
all of its rights and obligations (which may constitute U.S. Commitments and/or
Canadian Commitments) under this Agreement, after giving effect to the
assignment, the aggregate principal amount of such assigning Bank's obligations
hereunder shall be in an aggregate amount of $25,000,000 or greater (unless, at
Chrysler's discretion, a lesser amount is mutually agreed upon between Chrysler
and such Bank) and (iii) after giving effect to any such assignment by a US$
Bank, (x) the Aggregate U.S./Foreign Extensions of Credit of such Bank shall
not exceed its U.S. Commitment and (y) the aggregate of all Foreign Currency
Subfacility Maximum Borrowing Amounts in respect of such Bank shall not exceed
such Bank's U.S. Commitment. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder, and (y) the assigning Bank thereunder
shall, to the
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extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such assigning Bank shall cease to be a
party hereto).
(d) (i) The Administrative Agent shall maintain at its
address referred to in subsection 13.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "U.S. Register") for the recordation of the
names and addresses of the US$ Banks and the U.S. Commitment of, and principal
amount of the U.S. Loans and the Types of such loans owing to, each US$ Bank
from time to time. The entries in the U.S. Register shall be conclusive, in
the absence of clearly demonstrable error, and Chrysler, the Administrative
Agent and the Banks may treat each Person whose name is recorded in the U.S.
Register as the owner of the Loans recorded therein for all purposes of this
Agreement. The U.S. Register shall be available for inspection by Chrysler or
any U.S. Bank at any reasonable time and from time to time upon reasonable
prior notice. The Administrative Agent shall give prompt written notice to
Chrysler of the making of any entry in the U.S. Register or any change in any
such entry.
(ii) The Canadian Administrative Agent shall maintain at its
address referred to in subsection 13.2 a register (the "Canadian Register") for
the recordation of the names and addresses of the C$ Banks, the Canadian
Commitments of such Banks, and the principal amount of each category of C$ Loan
owing to each such Bank from time to time. The entries in the Canadian
Register shall be conclusive, in the absence of clearly demonstrable error, and
Chrysler Canada, the Canadian Administrative Agent and the Banks may treat each
Person whose name is recorded in the Canadian Register as the owner of the C$
Loans recorded therein for all purposes of this Agreement. The Canadian
Register shall be available for inspection by Chrysler, Chrysler Canada or any
C$ Bank at any reasonable time and from time to time upon reasonable prior
notice. The Canadian Administrative Agent shall give prompt written notice to
Chrysler Canada of the making of any entry in the Canadian Register or any
change in any such entry.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an Assignee (and, in the case of an Assignee that is
not then a Bank or an affiliate thereof, by Chrysler and the Administrative
Agent) together with payment to the Administrative Agent of a registration and
processing fee of $2,500 (which shall not be payable by either Borrower), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the relevant Register and give notice of such
acceptance and recordation to the relevant Banks and Chrysler.
(f) Chrysler authorizes each US$ Bank (in the case of U.S.
Loans) and each C$ Bank (in the case of C$ Loans) to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Bank's possession concerning Chrysler
and its affiliates which has been delivered to such Bank by or on behalf of
Chrysler pursuant to this Agreement or which has been delivered to such Bank by
or on behalf of Chrysler in connection with such Bank's credit evaluation of
Chrysler and its affiliates prior to becoming a party to this Agreement.
(g) Nothing herein shall prohibit any US$ Bank from pledging
or assigning all or any portion of its U.S. Loans to any Federal Reserve Bank
in accordance with applicable law. In order to facilitate such pledge or
assignment, Chrysler hereby agrees that, upon request of any US$ Bank at any
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59
time and from time to time after Chrysler has made its initial borrowing
hereunder, Chrysler shall provide to such Bank, at Chrysler's own expense, a
promissory note, substantially in the form of Exhibit H, evidencing the U.S.
Loans owing to such Bank.
13.7 Right of Set-off. Upon the occurrence and during the
continuance of an Event of Default, subject to receipt of the consent of the
Required Banks, each Bank is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank (including, without
limitation, its branches) to or for the credit or the account of either
Facility Borrower against any and all of the obligations of such Facility
Borrower then due and owing. Each Bank agrees promptly to notify such Facility
Borrower and the Administrative 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. The rights of each Bank
under this subsection are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which such Bank may have.
13.8 Adjustments. If any Bank (a "benefitted Bank") shall
at any time, except in connection with any termination, replacement or
assignment of or by such Bank pursuant to this Agreement, receive any payment
of all or part of its U.S. Loans or C$ Loans, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in clause
(g) of Section 9, or otherwise) in a greater proportion than any such payment
to, or any collateral received by, any other Bank, if any, in respect of such
other Bank's U.S. Loans or C$ Loans, as the case may be, or interest thereon,
such benefitted Bank shall purchase for cash from the other US$ Banks or C$
Banks, as the case may be, such portion of each such other Bank's U.S. Loans or
C$ Loans, as the case may be, or shall provide such other relevant 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 other relevant 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 Facility Borrower agrees that each
Bank so purchasing a portion of another Bank's U.S. Loans or C$ Loans, as the
case may be, 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.
13.9 New Banks; Commitment Increases; Commitment
Reallocations. (a) With the consent of Chrysler and upon notification to the
Administrative Agent, one or more additional Commercial Banks may become a
party to this Agreement by executing a New Bank Supplement with Chrysler and
the Administrative Agent, substantially in the form of Exhibit A, 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 Agreement, and Schedule I hereto
shall be deemed to be amended to add the name and reflect the Commitment of
such New Bank. Each New Bank shall be designated as a US$ Bank with a U.S.
Commitment and/or a C$ Bank with a Canadian Commitment, as specified in such
New Bank Supplement.
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(b) With the consent of Chrysler and upon notification to the
Administrative Agent, any Bank may increase the amount of its Commitment by
executing a Commitment Increase Supplement with Chrysler and the Administrative
Agent, substantially in the form of Exhibit B, whereupon such Bank shall be
bound by and entitled to the benefits of this Agreement with respect to the
full amount of its Commitment as so increased (which increase shall be
allocated to its U.S. Commitment and/or its Canadian Commitment, as specified
in such Commitment Increase Supplement), and Schedule I hereto shall be deemed
to be amended to reflect the increased Commitment of such Bank.
(c) With the consent of the Administrative Agent (which shall
not be unreasonably withheld), so long as no Default or Event of Default shall
have occurred and be continuing, Chrysler may reallocate all or any portion of
the Canadian Commitment of any C$ Bank to the U.S. Commitment of such C$ Bank's
Related US$ Bank or reallocate all or any portion of the U.S. Commitment of any
US$ Bank to the Canadian Commitment of such US$ Bank's Related C$ Bank by
executing a Commitment Reallocation Supplement hereto with the Administrative
Agent, substantially in the form of Exhibit E-2, whereupon the affected US$
Bank and C$ Bank shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of the U.S. Commitment or Canadian
Commitment of such Bank after giving effect to such reallocation, and Schedule
I hereto shall be deemed to be amended to reflect such reallocation. Each
reallocation pursuant to this subsection 13.9(c) shall be subject to the prior
written consent of the affected US$ Bank and C$ Bank, provided, that each C$
Bank and its Related US$ Bank confirm that, as of the date hereof, such C$ Bank
and its Related US$ Bank are willing to consider any reallocation of such
Related US$ Bank's U.S. Commitment to such C$ Bank's Canadian Commitment which
does not increase such C$ Bank's Canadian Commitment above its Initial Offered
Canadian Commitment Amount.
(d) (i) If on the date upon which a Commercial Bank becomes
a New Bank (designated as a US$ Bank), upon which a Bank obtains a U.S.
Commitment or upon which a US$ Bank's U.S. Commitment is changed pursuant to
this subsection 13.9, there is an unpaid principal amount of U.S. Loans,
Chrysler shall borrow U.S. Loans from, or prepay U.S. Loans of, such Bank, as
applicable, in an amount such that, after giving effect thereto, the quotient
of (x) the U.S. Loans of such Bank of each Type (and, in the case of Eurodollar
Loans, of each Eurodollar Tranche) and (y) such Bank's U.S. Commitment is equal
to the comparable quotient of each other US$ Bank; provided, that after the
first Foreign Currency Subfacility becomes effective hereunder, the amount of
such borrowing or prepayment shall instead be determined by reference to the
amount of each Type of U.S. Loan (and, in the case of Eurodollar Loans, of each
Eurodollar Tranche) which would have been outstanding from such Bank if (1)
each such Type or tranche had been borrowed on the date of the relevant change
in such Bank's U.S. Commitment after giving effect to such change and (2) the
aggregate amount of each such Type or tranche requested to be so borrowed had
been increased or decreased, as the case may be, to the extent necessary to
give effect, with respect to such Bank, to the first sentence of subsection
4.8(a). Any Eurodollar Loan borrowed pursuant to the preceding sentence shall
bear interest at a rate equal to such rate as shall be mutually agreed upon
between Chrysler and the relevant Bank reflecting current market conditions.
(ii) If on the date upon which a Commercial Bank becomes a
New Bank (designated as a C$ Bank), upon which a Bank obtains a Canadian
Commitment or upon which a C$ Bank's Canadian Commitment is changed pursuant to
subsection 13.9, there is an unpaid principal amount of C$ Loans, Chrysler
Canada shall borrow C$ Loans from, or prepay or Defease (in the case of
Bankers'
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Acceptances) C$ Loans of, such Bank, as applicable, in an amount such that,
after giving effect thereto, the quotient of (x) the C$ Loans of such Bank of
each category (and, in the case of Bankers' Acceptances, of each maturity) and
(y) such Bank's Canadian Commitment is equal to the comparable quotient of each
other C$ Bank. Any Bankers' Acceptance borrowed pursuant to the preceding
sentence shall yield an Acceptance Fee at a rate equal to such rate as shall be
mutually agreed upon between Chrysler and the relevant Bank reflecting current
market conditions.
(e) The Administrative Agent shall advise the Canadian
Administrative Agent and the Banks of each addition of a New Bank and of each
change in a Bank's U.S. Commitment or Canadian Commitment pursuant to this
subsection 13.9 and of the amount of any borrowing or prepayment required to be
made from or to any such Bank pursuant to this subsection 13.9 upon such
addition or change.
13.10 Counterparts. This Agreement may be executed by one or
more of the parties hereto on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with each of Chrysler and the Administrative Agent.
13.11 Judgments Relating to Chrysler Canada. (a) If, for
the purpose of obtaining judgment in any court, it is necessary to convert a
sum owing hereunder by Chrysler Canada in one currency into another currency,
Chrysler Canada agrees, to the fullest extent that it may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures in the relevant jurisdiction the relevant Bank could
purchase the first currency with such other currency for the first currency on
the Banking Day immediately preceding the day on which final judgment is given.
(b) The obligations of Chrysler Canada in respect of any sum
due in C$ to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than C$, be discharged only to the extent that,
on the Banking Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
C$ with the Judgment Currency; if the amount of C$ so purchased is less than
the sum originally due to the Applicable Creditor in C$, Chrysler Canada
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Applicable Creditor against such loss, provided, that if the
amount of C$ so purchased exceeds the sum originally due to the Applicable
Creditor, the Applicable Creditor agrees to remit such excess to Chrysler
Canada. The obligations of Chrysler Canada contained in this subsection 13.11
shall survive the termination of this Agreement and the payment of all other
amounts owing hereunder.
13.12 WAIVERS OF JURY TRIAL. THE FACILITY BORROWERS, THE
ADMINISTRATIVE AGENT, THE CANADIAN ADMINISTRATIVE AGENT AND THE BANKS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
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GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF
LAW.
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13.14 Integration. This Agreement represents the agreement
of each party with respect to the subject matter hereof, and there are no
promises or representations by either Agent or any Bank relative to the subject
matter hereof not reflected herein.
13.15 Information. Each Bank is hereby authorized to divulge
any information pertaining to this Agreement, the transactions contemplated
hereby and the records maintained by such Bank when required by any
Governmental Authority.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
CHRYSLER CORPORATION
By: ____________________________________
Title:
CHRYSLER CANADA LTD.
By:_____________________________________
Title:
By: ____________________________________
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: ____________________________________
Title:
ROYAL BANK OF CANADA, as Canadian
Administrative Agent
By: ____________________________________
Title:
69
SCHEDULE I TO
REVOLVING CREDIT AGREEMENT
INITIAL OFFERED
CANADIAN COMBINED CANADIAN
BANKS U.S. COMMITMENT COMMITMENT COMMITMENT COMMITMENT AMOUNT
----- ------------------- -------------- ------------- -----------------
The Chase Manhattan Bank (1) . . . . . . . . . . $145,000,000 $ 30,000,000 175,000,000 $ 35,000,000
Royal Bank of Canada . . . . . . . . . . . . . . 80,000,000 45,000,000 125,000,000 130,000,000
ABN AMRO Bank N.V. - Chicago Branch (2) . . . . . 80,000,000 20,000,000 100,000,000 20,000,000
Bank of America NT & SA (3) . . . . . . . . . . 80,000,000 20,000,000 100,000,000 20,000,000
The Bank of New York . . . . . . . . . . . . . . 100,000,000 -- 100,000,000 --
The Bank of Nova Scotia . . . . . . . . . . . . . 65,000,000 35,000,000 100,000,000 35,000,000
Banque Nationale de Paris . . . . . . . . . . . . 100,000,000 -- 100,000,000 --
Canadian Imperial Bank of Commerce . . . . . . . 65,000,000 35,000,000 100,000,000 75,000,000
Comerica Bank . . . . . . . . . . . . . . . . . . 100,000,000 -- 100,000,000 --
Commerzbank Aktiengesellschaft Chicago Branch . . 100,000,000 -- 100,000,000 --
NBD Bank . . . . . . . . . . . . . . . . . . . . 100,000,000 -- 100,000,000 --
The LTCB Trust Company . . . . . . . . . . . . 100,000,000 -- 100,000,000 --
Morgan Guaranty Trust Company of New York (4) . . 80,000,000 20,000,000 100,000,000 20,000,000
NationsBank, N.A . . . . . . . . . . . . . . . . 100,000,000 -- 100,000,000 --
Societe Generale, Chicago Branch . . . . . . . . 100,000,000 -- 100,000,000 --
The Toronto-Dominion Bank . . . . . . . . . . . 65,000,000 35,000,000 100,000,000 100,000,000
Arab Banking Corporation . . . . . . . . . . . . 50,000,000 -- 50,000,000 --
Banca Nazionale Del Lavoro S.p.A. New York
Branch . . . . . . . . . . . . . . . . . . . . 50,000,000 -- 50,000,000 --
Bankers Trust Company . . . . . . . . . . . . . . 50,000,000 -- 50,000,000 --
Bank of Montreal . . . . . . . . . . . . . . . . 30,000,000 20,000,000 50,000,000 20,000,000
Barclays Bank PLC . . . . . . . . . . . . . . . . 50,000,000 -- 50,000,000 --
CARIPLO - Cassa di Risparmio delle Provincie
Lombarde SpA. . . . . . . . . . . . . . . . . . 50,000,000 -- 50,000,000 --
Credit Lyonnais Chicago Branch (5) . . . . . . . 30,000,000 20,000,000 50,000,000 20,000,000
Credit Suisse First Boston . . . . . . . . . . . 50,000,000 -- 50,000,000 --
The Dai-Ichi Kangyo Bank, Ltd. . . . . . . . . . 50,000,000 -- 50,000,000 --
The Fuji Bank, Limited Chicago Branch . . . . . . 50,000,000 -- 50,000,000 --
Istituto Bancario San Paolo di Torino SpA. . . . 50,000,000 -- 50,000,000 --
Mellon Bank N.A. . . . . . . . . . . . . . . . . 50,000,000 -- 50,000,000 --
National Bank of Canada . . . . . . . . . . . . . 30,000,000 20,000,000 50,000,000 20,000,000
The Sanwa Bank, Limited, Chicago Branch . . . . . 50,000,000 -- 50,000,000 --
Swiss Bank Corporation, New York Branch . . . . . 50,000,000 -- 50,000,000 --
Union Bank of Switzerland New York Branch . . . . 50,000,000 -- 50,000,000 --
The Yasuda Trust and Banking Company, Limited. . 50,000,000 -- 50,000,000 --
Total 2,250,000,000 300,000,000 2,550,000,000 495,000,000
(1) Related C$ Bank: The Chase Manhattan Bank of Canada
(2) Related C$ Bank: ABN AMRO Bank Canada
(3) Related C$ Bank: Bank of America Canada
(4) Related C$ Bank: J.P. Morgan Canada
(5) Related C$ Bank: Credit Lyonnais Canada
70
SCHEDULE II TO
REVOLVING CREDIT AGREEMENT
LIENS PERMITTED UNDER SUBSECTION 8.2(a)
Secured stand-by letter of credit in the amount of $200,000,000 used to ensure
vacation payment to UAW employees
71
EXHIBIT A TO
REVOLVING CREDIT AGREEMENT
[FORM OF NEW BANK SUPPLEMENT]
SUPPLEMENT, dated _________________, to the Revolving Credit
Agreement, dated as of April 24, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among CHRYSLER CORPORATION
("Chrysler"), CHRYSLER CANADA LTD., the Banks parties thereto, ROYAL BANK OF
CANADA, as Canadian Administrative Agent, and THE CHASE MANHATTAN BANK, as
Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in subsection 13.9(a) thereof
that any Commercial Bank, although not originally a party thereto, may become a
party to the Credit Agreement with the consent of Chrysler by executing and
delivering to Chrysler and the Administrative Agent a supplement to the Credit
Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned was not an original party to the Credit
Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the Credit
Agreement, and agrees that it shall, on the date this Supplement is
accepted by Chrysler and the Administrative Agent, become a Bank for all
purposes of the Credit Agreement to the same extent as if originally a
party thereto.
2. [The undersigned shall be a US$ Bank and the amount of its U.S.
Commitment shall be $___________________.] [The undersigned shall be a C$
Bank and amount of its Canadian Commitment shall be $_______________.]
3. The undersigned's address for notices for the purposes of the
Credit Agreement is as follows:
4. Terms defined in the Credit Agreement shall have their defined
meanings when used herein.
72
2
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF BANK]
By________________________________
Title:
Accepted this _____ day of
______________, 199_.
CHRYSLER CORPORATION
By____________________________
Title:
Accepted this ____ day of
______________, 199_.
THE CHASE MANHATTAN BANK, as Administrative Agent
By____________________________
Title:
73
EXHIBIT B TO
REVOLVING CREDIT AGREEMENT
[FORM OF COMMITMENT INCREASE SUPPLEMENT]
SUPPLEMENT, dated _________________, to the Revolving Credit
Agreement, dated as of April 24, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among CHRYSLER CORPORATION
("Chrysler"), CHRYSLER CANADA LTD. ("Chrysler Canada"), the Banks parties
thereto, ROYAL BANK OF CANADA, as Canadian Administrative Agent, and THE CHASE
MANHATTAN BANK, as Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in subsection 13.9(b) thereof
that any Bank with the consent of Chrysler may increase the amount of its
Commitment by executing and delivering to Chrysler and the Administrative Agent
a supplement to the Credit Agreement in substantially the form of this
Supplement; and
WHEREAS, the undersigned now desires to increase the amount of its
Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of the
Credit Agreement, that on the date this Supplement is accepted by Chrysler
and the Administrative Agent it [shall have its U.S. Commitment to Chrysler
increased by $______________] [shall have its Canadian Commitment to
Chrysler Canada increased by $______________], thereby making the amount of
its [U.S.] [Canadian] Commitment $______________].
2. Terms defined in the Credit Agreement shall have their defined
meanings when used herein.
74
2
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF BANK]
By________________________________
Title:
Accepted this _____ day of
______________, 199_.
CHRYSLER CORPORATION
By____________________________
Title:
Accepted this ____ day of
______________, 199_.
THE CHASE MANHATTAN BANK, as Administrative Agent
By____________________________
Title:
75
EXHIBIT C TO
REVOLVING CREDIT AGREEMENT
[FORM OF OPINION OF SIMPSON THACHER & BARTLETT]
April 24, 1997
To: The Chase Manhattan Bank, as
administrative agent under the
Revolving Credit Agreement referred
to below
270 Park Avenue
New York, New York 10017
The Banks listed on Schedule I hereto
Re: The Revolving Credit Agreement, dated as of April 24, 1997
(the "Credit Agreement"), among Chrysler Corporation, a
Delaware corporation ("Chrysler"), Chrysler Canada Ltd., a
Canadian corporation ("Chrysler Canada"; together with Chrysler,
the "Facility Borrowers"), the Banks parties thereto, Royal
Bank of Canada, as Canadian Administrative Agent, and The Chase
Manhattan Bank, as Administrative Agent.
Ladies and Gentlemen:
We have acted as counsel to the Administrative Agent in connection
with the execution and delivery of the Credit Agreement.
This opinion is delivered to you pursuant to subsection 6.1(e)(i) of
the Credit Agreement. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
In arriving at the opinion expressed below, we have examined (a) a
counterpart of the Credit Agreement, signed by Chrysler, Chrysler Canada, the
Canadian Administrative Agent and the Administrative Agent and (b) such
documents as we have deemed necessary or appropriate for the purposes of this
opinion.
In such examination, we have assumed the genuineness of all
signatures, the authenticity, regularity and completeness of all documents
submitted to us as originals, the completeness of all documents submitted to us
as certified, conformed or photostatic copies and the conformity of such
documents to the original documents.
We have also assumed that the Credit Agreement has been duly
authorized, executed and delivered by each Facility Borrower; that each Facility
Borrower is duly incorporated and validly existing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to
execute, deliver and perform its obligations under the Credit Agreement; that
neither Facility Borrower is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended; that the execution, delivery and
performance by each Facility Borrower of the Credit Agreement has
76
2
been duly authorized BY all necessary corporate action on the part of each
Facility Borrower, does not contravene the certificate of incorporation,
by-laws or similar organizational documents of either Facility Borrower, does
not violate, or require any consent not obtained under, any applicable law or
regulation or any order, writ, injunction or decree of any court or other
Governmental Authority binding upon either Facility Borrower and does not
violate, or require any consent not obtained under, any contractual obligation
applicable to or binding upon either Facility Borrower; and that the Credit
Agreement constitutes a valid and legally binding obligation of the Canadian
Administrative Agent and the Banks.
Based upon the foregoing, and subject to the qualifications and
comments set forth below, we are of the opinion that, insofar as the law of the
State of New York is concerned, the Credit Agreement constitutes a valid and
legally binding obligation of each Facility Borrower, enforceable against each
Facility Borrower in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing, except that we express
no opinion as to (a) any indemnification obligations of the Facility Borrowers
under the Credit Agreement to the extent such obligations might be deemed to be
inconsistent with public policy; (b) any provision of the Credit Agreement that
purports to establish an evidentiary standard for determinations by the Banks or
either Agent; (c) any setoff right contained in subsection 13.7 or 13.8 of the
Credit Agreement authorizing any Bank to set off and apply deposits at any time
held, and any other indebtedness at any time owing, by such Bank to or for the
account of any party against any participation transferred to or by such Bank;
(d) subsections 12.7 and 13.11 of the Credit Agreement; or (e) any Foreign
Currency Subfacility.
We note that (i) a New York statute provides that with respect to a
foreign currency obligation, a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of exchange prevailing
on the date of entry of such judgment or decree and (ii) with respect to a
foreign currency obligation, a United States Federal court in New York may award
judgment in United States dollars, provided that we express no opinion as to the
rate of exchange such court would apply.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York.
This opinion has been rendered solely for your benefit in connection
with the Credit Agreement and the transactions contemplated thereby and may not
be relied upon by you for any other purpose, or relied upon by any other person,
firm or corporation without our prior written consent or furnished to any other
person, firm or corporation other than any assignee or participant under the
Credit Agreement or any bank examiner or other regulatory authority without our
prior written consent.
Very truly yours,
SIMPSON THACHER & BARTLETT
77
SCHEDULE I
THE BANKS
78
EXHIBIT D-1 TO
REVOLVING CREDIT AGREEMENT
[FORM OF OPINION OF GENERAL COUNSEL TO CHRYSLER]
April 24, 1997
To: The Chase Manhattan Bank, as Administrative Agent
The commercial banks (the "Banks") from time to time parties to the
Revolving Credit Agreement dated as of April 24, 1997 among Chrysler
Corporation, Chrysler Canada Ltd., the Banks, Royal Bank of Canada, as
Canadian Administrative Agent, and The Chase Manhattan Bank, as
Administrative Agent
Dear Sirs:
I am General Counsel to Chrysler Corporation, a Delaware corporation
("Chrysler"), and have acted as such in connection with the execution and
delivery of the Revolving Credit Agreement dated as of April 24, 1997 (the
"Revolving Credit Agreement") among Chrysler, Chrysler Canada Ltd. ("Chrysler
Canada"), the Banks, Royal Bank of Canada, as Canadian Administrative Agent, and
The Chase Manhattan Bank, as Administrative Agent. This opinion is delivered to
you pursuant to subsection 6.1(e)(ii) of the Revolving Credit Agreement. As
used herein, the term "Facility Borrowers" refers to Chrysler and Chrysler
Canada. Terms used herein which are defined in the Revolving Credit Agreement
shall have the respective meanings set forth in the Revolving Credit Agreement,
unless otherwise defined herein.
In connection with this opinion, I or members of my staff have
examined executed copies of each of the Revolving Credit Agreement and such
corporate documents and records of Chrysler and certificates of public officials
and officers of Chrysler, and such other documents, as I have deemed necessary
or appropriate for the purposes of this opinion. For the purposes of this
opinion, I have assumed (i) the genuineness of all signatures of, and the
authority of, Persons signing the Revolving Credit Agreement on behalf of
parties thereto other than Chrysler, (ii) the authenticity of all documents
submitted to me as originals, (iii) the conformity to authentic original
documents of all documents submitted to me as certified, conformed or
photostatic copies and (iv) the due authorization, execution and delivery of the
Revolving Credit Agreement by the parties thereto other than Chrysler. For the
purposes of my opinions set forth in paragraphs 4 and 7 below, I have relied on
an opinion letter of even date herewith issued by Fasken Campbell Godfrey,
special Canadian counsel to Chrysler Canada, to the extent that matters relevant
to the opinions set forth in such paragraphs are covered by such opinion letter.
Based upon the foregoing, I am of the opinion that:
1. Chrysler and each of its Significant Subsidiaries is duly
incorporated, validly existing and, where applicable, in good
standing under the laws of the jurisdiction of its incorporation
and duly qualified as a foreign corporation to do business and,
where applicable, in good standing under the laws of each
79
2
jurisdiction where its ownership, lease or operation of property
or the conduct of its business requires such qualification except
where the failure to be so qualified would not have a material
adverse effect on the business, operations, property or financial
or other condition of Chrysler and its Subsidiaries taken as a
whole.
2. The execution, delivery and performance by Chrysler of the
Revolving Credit Agreement are within Chrysler's corporate powers
and have been duly authorized by all necessary corporate action.
3. The execution, delivery and performance by each Facility Borrower
of the Revolving Credit Agreement do not contravene (a) any
Requirement of Law of the United States of America, the State of
New York or the State of Michigan or (b) any provision of the
General Corporation Law of the State of Delaware.
4. The execution, delivery and performance by each Facility Borrower
of the Revolving Credit Agreement do not contravene, to the best
of my knowledge after due inquiry, any Contractual Obligation of
Chrysler or any of its Subsidiaries.
5. No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority of the United States of
America, the State of New York or the State of Michigan is
required to be obtained or made by either Facility Borrower for
the due execution, delivery and performance by each Facility
Borrower of the Revolving Credit Agreement.
6. The Revolving Credit Agreement has been duly executed and
delivered on behalf of Chrysler.
7. The Revolving Credit Agreement constitutes a legal, valid and
binding obligation of each Facility Borrower enforceable against
each Facility Borrower 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
principles of equity.
8. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best of
my knowledge after due inquiry, threatened by or against Chrysler
or against any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to the
Revolving Credit Agreement or any of the transactions contemplated
thereby, or (b) which might reasonably be expected to have a
material adverse effect on the business, operations, property or
financial or other condition of Chrysler and its Subsidiaries
taken as a whole.
I express no opinion as to (a) any indemnification obligations of the
Facility Borrowers under the Revolving Credit Agreement to the extent such
obligations might be deemed to be inconsistent with public policy; (b) any
provision of the Revolving Credit Agreement that purports to establish an
evidentiary standard for determinations by the Banks or either Agent; (c) any
setoff right contained in subsection 13.7 or 13.8 of the Revolving Credit
Agreement authorizing any Bank to set off
80
3
and apply deposits at any time held, and any other indebtedness at any time
owing, by such Bank to or for the account of any party against any
participation transferred to or by such Bank; (d) subsection 12.7 or 13.11 of
the Revolving Credit Agreement; or (e) any Foreign Currency Subfacility.
I note that (i) a New York statute provides that with respect to a
foreign currency obligation, a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of exchange prevailing
on the date of entry of such judgment or decree and (ii) with respect to a
foreign currency obligation, a United States Federal court in New York may award
judgment in United States dollars, provided that I express no opinion as to the
rate of exchange such court would apply.
I am a member of the bar of the States of Michigan and New York, and
the foregoing opinion may not be taken as extending to matters arising under
laws other than the laws of the States of Michigan and New York, the corporate
laws of the State of Delaware and the federal laws of the United States of
America.
Very truly yours,
81
EXHIBIT D-2 TO
REVOLVING CREDIT AGREEMENT
[FORM OF OPINION OF
FASKEN CAMPBELL GODFREY]
April 24, 1997
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
The Banks parties to the Credit Agreement referred to below
Dear Sirs:
We have acted as special Canadian counsel to Chrysler Canada Ltd., a
Canadian corporation ("Chrysler Canada") in connection with the execution and
delivery of the Revolving Credit Agreement, dated as of April 24, 1997 (the
"Credit Agreement"), among Chrysler Corporation, Chrysler Canada, the Banks
parties thereto, Royal Bank of Canada, as Canadian Administrative Agent, and The
Chase Manhattan Bank, as Administrative Agent. This opinion is delivered to you
pursuant to subsection 6.1(e)(iii) of the Credit Agreement. Terms used herein
which are defined in the Credit Agreement shall have the respective meanings set
forth in the Credit Agreement, unless otherwise defined herein.
In connection with this opinion, we have examined executed copies (or
facsimile transmitted signature pages) of the Credit Agreement and such
corporate documents and records of Chrysler Canada, and certificates of public
officials and officers of Chrysler Canada, and such other documents as we have
deemed necessary or appropriate for purposes of this opinion. For the purposes
of this opinion, we have assumed (i) the genuineness of all signatures of, and
the authority of, Persons signing the Credit Agreement on behalf of parties
thereto other than Chrysler Canada, (ii) the
82
The Chase Manhattan Bank,
as Administrative Agent -2- April 24, 1997
authenticity of all documents submitted to us as originals, (iii) the
conformity to authentic original documents of all documents submitted to us as
certified, conformed, facsimile or photostatic copies, (iv) the due
authorization, execution and delivery of the Credit Agreement by the parties
thereto other than Chrysler Canada and (v) the enforceability of the Credit
Agreement against the parties thereto other than Chrysler Canada.
The opinions expressed herein are limited to the laws of general
application of the Province of Ontario and the laws of general application of
Canada applicable therein (the "Specified Laws"), and we do not express any
opinion herein concerning any other law (including, without limitation, any law
of any political subdivision of the Province of Ontario).
For purposes of the opinion set forth in paragraph 1 below, we have
relied upon a Certificate of Compliance dated April __, 1997 issued by the
Department of Industry and Science Canada and have assumed that a like
certificate bearing today's date would be available if requested.
Based upon the foregoing and subject to the qualifications set forth
herein, we are of the opinion that:
1. Chrysler Canada is a corporation continued under the Canada Business
Corporations Act and has not been discontinued or dissolved under that
Act.
2. The Credit Agreement has been duly executed on behalf of Chrysler
Canada. The execution, delivery and performance by Chrysler Canada of
the Credit Agreement (a) are within the corporate powers of Chrysler
Canada, (b) have been duly authorized by all necessary corporate
action on the part of Chrysler Canada, and (c) do not contravene (i)
the articles or by-laws of Chrysler Canada, (ii) any statutory law,
rule, or regulation under the Specified Laws presently in effect which
affects or binds Chrysler Canada or, to our actual knowledge, any
order, writ, judgment, injunction, determination or award presently in
effect which affects or binds Chrysler Canada or any of its properties
or (iii) to our actual knowledge, any Contractual Obligation to which
Chrysler Canada is a party.
3. No authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority under the Specified Laws is
required to be obtained or made by either Facility Borrower for the
due execution, delivery and performance by such Facility Borrower of
the Credit Agreement.
83
The Chase Manhattan Bank,
as Administrative Agent -3- April 24, 1997
4. To our actual knowledge, no litigation or proceeding of or before any
arbitrator or Governmental Authority of Canada or the Province of
Ontario is pending by or against Chrysler Canada or against any of its
properties or revenues (a) with respect to the Credit Agreement or (b)
which would, if adversely determined, have a material adverse effect
on the business, operations, property or financial condition of
Chrysler and its Subsidiaries taken as a whole.
5. None of the Canadian Administrative Agent or the C$ Banks will be
liable for, and Chrysler Canada will not be required to deduct or
withhold, any Canadian Withholding Tax (as defined below) on or from
any amounts paid or credited to a C$ Bank that is a resident of Canada
for purposes of the Income Tax Act (Canada) by Chrysler Canada on
account of C$ Loans (including interest and Acceptance Fees) or
Canadian Facility Fees under the Credit Agreement. None of the
Administrative Agent or the Banks (other than the C$ Banks) will be
subject to any Taxes (as defined below) on amounts paid or credited to
a C$ Bank by Chrysler Canada on account of C$ Loans (including
interest and Acceptance Fees) or Canadian Facility Fees under the
Credit Agreement.
The term "Taxes" shall mean all taxes, charges, fees, levies, imposts
and other assessments, including all income, sales, use, goods and
services, value added, capital, capital gains, alternative, net worth,
transfer, profits, withholding, payroll, employer health, excise, real
property and personal property taxes, and any other taxes, customs
duties, fees, assessments or other similar charges in the nature of a
tax together with any installments with respect thereto and any
interest, fines and penalties, imposed by any Governmental Authority
of Canada or of the Province of Ontario.
The term "Canadian Withholding Tax" shall mean all taxes imposed under
Part XIII of the Income Tax Act (Canada) and any similar taxes imposed
under the Corporations Tax Act (Ontario).
6. In any action or proceeding arising out of or relating to the Credit
Agreement in any court of competent jurisdiction in the Province of
Ontario, such court would recognize and give effect to the provisions
of subsection 13.13 of the Credit Agreement wherein the respective
parties thereto agree that the Credit Agreement shall be governed by,
and construed and interpreted in accordance with, the internal laws of
the State of New York provided that such choice of laws is bona fide
(in the sense that it was not made with a view to avoiding the
consequences of the laws of any other jurisdiction) and is not
contrary to "public policy", as such term is understood under the
Specified Laws and, to the extent specifically pleaded and proved as a
fact by expert evidence, such court would apply the laws of the State
of New York to all issues which under conflict of laws rules in effect
in the Province of Ontario are characterized to be contract issues,
except that any such court (i) will apply those laws of the Province
of Ontario which such court characterizes as procedural and will not
apply those laws of the State of New York which such court
characterizes as procedural; (ii) will not apply those laws of the
State of New York which such court would characterize as revenue,
expropriatory, penal or similar laws; and (iii) will not apply those
laws of the State of New York the application of which such court
would characterize as inconsistent with "public policy", as such term
is understood under the Specified Laws.
84
The Chase Manhattan Bank,
as Administrative Agent -4- April 24, 1997
7. The laws of the Province of Ontario permit an action to be brought on
a final, non-appealable, conclusive and subsisting judgment in
personam of the courts of the State of New York or the courts of the
United States of America for the Southern District of New York, which
is not impeachable as void or voidable under the internal laws of the
State of New York, for a sum certain if (i) the court rendering such
judgment had jurisdiction over the judgment debtor, as recognized by
the courts of the Province of Ontario; (ii) such judgment debtor was
duly served with the process of the courts of State of New York or the
courts of the United States of America for the Southern District of
New York or appeared to such process, (iii) such judgment was not
obtained by fraud or in a manner contrary to natural justice and the
enforcement thereof would not be inconsistent with "public policy", as
such term is understood under the Specified Laws or contrary to any
order made by the Attorney General of Canada under the Foreign
Extraterritorial Measures Act (Canada); (iv) the enforcement of such
judgment does not constitute, directly or indirectly, the enforcement
of foreign revenue, expropriatory, penal or similar laws; (v) there
has been compliance with the Limitations Act (Ontario), which
specifies a period within which an action to enforce a foreign
judgment must be commenced; and (vi) prior to the rendering of
judgment by the court in the Province of Ontario, the judgment debtor
does not avail itself of any right or defense based on either law or
admissible fact which has accrued to such judgment debtor subsequent
to the entering of such judgment of the courts of the State of New
York or the courts of the United States of America for the Southern
District of New York. Pursuant to the Currency Act (Canada), a
judgment in money rendered by a court of the Province of Ontario must
be awarded in Canadian currency and such judgment may be based on a
rate of exchange in effect on a day other than the day of payment of
the judgment.
8. Our review of the Credit Agreement pertaining to Chrysler Canada
disclosed nothing which would indicate that the transactions
contemplated by the Credit Agreement are inconsistent with "public
policy" as such term is understood under the Specified Laws.
Opinions expressed above based upon our "actual knowledge" refer
solely to the conscious awareness of facts or other information by the lawyer
who has signed this opinion and any lawyer who has had active involvement in
negotiating the Credit Agreement or in preparing this opinion.
This opinion is given as of the date hereof and we undertake no
obligation to notify you of any changes in law or fact occurring after the date
hereof. This opinion is furnished to you solely in connection with the execution
and delivery of the Credit Agreement, may not be furnished to any other person,
firm or corporation, other than any assignee or participant under the Credit
Agreement or any bank examiner or other regulatory authority, without our prior
written consent, and may not be relied upon by anyone other than you and the
other counsel providing legal opinions to you pursuant to
85
The Chase Manhattan Bank,
as Administrative Agent -5- April 24, 1997
subsection 6.1(f) of the Credit Agreement, and then by you and such other
counsel only in connection with the execution and delivery of the Credit
Agreement.
Yours very truly,
86
EXHIBIT E-1 TO
REVOLVING CREDIT AGREEMENT
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit Agreement, dated as of April 24,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among CHRYSLER CORPORATION ("Chrysler"), CHRYSLER CANADA
LTD. ("Chrysler Canada"), the Banks parties thereto, ROYAL BANK OF CANADA, as
Canadian Administrative Agent, and THE CHASE MANHATTAN BANK, as Administrative
Agent. Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
The assignor listed on SCHEDULE 1 (the "Assignor") and the assignee listed
on SCHEDULE 1 (the "Assignee") agree as follows:
I. The Assignor hereby irrevocably sells and assigns to the Assignee without
recourse to the Assignor, and the Assignee hereby irrevocably purchases and
assumes from the Assignor without recourse to the Assignor, as of the Effective
Date (as defined below), an interest (the "Assigned Interest"), as described on
SCHEDULE 1, in and to the Assignor's rights and obligations under the Credit
Agreement with respect to those credit facilities contained in the Credit
Agreement as set forth on SCHEDULE 1 (individually, an "Assigned Facility";
collectively, the "Assigned Facilities"), in a principal amount for each
Assigned Facility as set forth on SCHEDULE 1.
II. The Assignor A. makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any instrument or document
furnished pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, or any instrument or
document furnished pursuant thereto, other than that it has not created any
adverse claim upon the interest being assigned by it hereunder and that such
interest is free and clear of any such adverse claim, and B. makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of Chrysler, Chrysler Canada, any Subsidiaries or any other
obligor or the performance or observance by Chrysler, Chrysler Canada, any
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any instrument or document furnished pursuant hereto or
thereto.
III. The Assignee A. represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; B. confirms that it has received a
copy of the Credit Agreement, together with such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; C. agrees that it has made and will,
independently and without reliance upon the Assignor, either 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 decisions in taking or not taking
action under the Credit Agreement or any instrument or document furnished
pursuant hereto or thereto; D. appoints and authorizes the Administrative Agent
to
87
The Chase Manhattan Bank,
as Administrative Agent -2- April 24, 1997
take such action as administrative agent on its behalf and to exercise such
powers and discretion under the Credit Agreement or any instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are incidental
thereto; E. in the case of each C$ Bank, appoints and authorizes the Canadian
Administrative Agent to take such action as Canadian administrative agent on
its behalf and to exercise such powers and discretion under the Credit
Agreement or any instrument or document furnished pursuant hereto or thereto as
are delegated to the Canadian Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and F. agrees that it will
be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank.
IV. The effective date of this Assignment and Acceptance shall be the date
specified on SCHEDULE 1 (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the relevant Agent for
recording by such Agent pursuant to subsection 13.6(d) of the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Administrative Agent, be earlier than five Business Days after the date
of such recording by the relevant Agent).
V. Upon such recording, from and after the Effective Date, the relevant
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) which accrue subsequent
to the Effective Date to the Assignee. The Assignor and the Assignee shall make
all appropriate adjustments in payments by the relevant Agent for periods prior
to the Effective Date or with respect to the making of this assignment directly
between themselves.
VI. From and after the Effective Date, A. the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and shall be
bound by the provisions thereof and B. the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
VII. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
88
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE REVOLVING CREDIT AGREEMENT, DATED AS OF APRIL 24, 1997
AMONG CHRYSLER CORPORATION, CHRYSLER CANADA LTD., THE BANKS PARTIES THERETO,
ROYAL BANK OF CANADA, AS CANADIAN ADMINISTRATIVE AGENT
AND THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT
- --------------------------------------------------------------------------------
Name and Address of Assignor:
Name and Address of Assignee:
Effective Date of Assignment:
Credit Principal
Facility Assigned Amount Assigned
----------------------- ----------------------
$
---------------
[Name of Assignee] [Name of Assignor]
By By
------------------------- ---------------------
Name: Name:
Title: Title:
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2
Consented To:
CHRYSLER CORPORATION
By: ______________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: _____________________
Name:
Title:
[Consents required only to the
extent expressly provided in
subsection 13.6(c) of the Credit
Agreement.]
Receipt Acknowledged for Purposes of Recordation
in the relevant Register:
[THE CHASE MANHATTAN BANK, as Administrative Agent
By:_____________________
Name:
Title:]
[ROYAL BANK OF CANADA, as Canadian
Administrative Agent
By:____________________
Name:
Title:]
90
EXHIBIT E-2 TO
REVOLVING CREDIT AGREEMENT
[FORM OF COMMITMENT REALLOCATION SUPPLEMENT]
SUPPLEMENT, dated _________________, to the Revolving Credit
Agreement, dated as of April 24, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among CHRYSLER CORPORATION
("Chrysler"), CHRYSLER CANADA LTD., the Banks parties thereto, ROYAL BANK OF
CANADA, as Canadian Administrative Agent, and THE CHASE MANHATTAN BANK, as
Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in subsection 13.9(c) thereof
that Chrysler, with the consent of the affected Bank(s) and the Administrative
Agent, may reallocate all or any portion of the Canadian Commitment of any C$
Bank to the U.S. Commitment of such C$ Bank's Related US$ Bank or reallocate all
or any portion of the U.S. Commitment of any US$ Bank to the Canadian Commitment
of such US$ Bank's Related C$ Bank by executing and delivering to the
Administrative Agent a supplement to the Credit Agreement in substantially the
form of this Supplement;
WHEREAS, Chrysler now desires to reallocate the [Canadian][U.S.]
Commitment of [insert name of Bank] to the [U.S.][Canadian] Commitment of its
Related [US$][C$] Bank (the "Affected Bank(s)") under the Credit Agreement; and
WHEREAS, each of the Affected Bank(s) and the Administrative Agent has
consented to such reallocation;
NOW THEREFORE, each party hereto hereby agrees as follows:
1. Each party hereto agrees, subject to the terms and conditions of
the Credit Agreement, that on the date this Supplement has been consented
to by each of the Affected Bank(s) and the Administrative Agent, [insert
name of Bank] shall have $__________ of its [Canadian][U.S.] Commitment
reallocated to the [U.S.][Canadian] Commitment of its Related [US$][C$]
Bank, thereby making the amount of its [Canadian][U.S.] Commitment
$________ and the amount of its Related [US$][C$] Bank's [U.S.][Canadian]
Commitment $_________.
2. Terms defined in the Credit Agreement shall have their defined
meanings when used herein.
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2
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
CHRYSLER CORPORATION
By___________________________
Title:
Consented to this ____ day of
______________, 199_.
[NAME(S) OF BANK(S)]
By__________________________
Title:
Consented to this ____ day of
______________, 199_.
THE CHASE MANHATTAN BANK, as Administrative Agent
By__________________________
Title:
92
EXHIBIT F-1 TO
REVOLVING CREDIT AGREEMENT
[FORM OF ADDENDUM]
ADDENDUM TO REVOLVING CREDIT AGREEMENT
The undersigned Bank (a) agrees to all of the provisions of the
Revolving Credit Agreement dated as of April 24, 1997 among Chrysler Corporation
("Chrysler"), Chrysler Canada Ltd. ("Chrysler Canada"), the Banks parties
thereto, Royal Bank of Canada, as Canadian Administrative Agent, and The Chase
Manhattan Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
and (b) becomes a party thereto, as a Bank and, in each case to the extent
indicated on Schedule I to the Credit Agreement, a US$ Bank and a C$ Bank, with
an obligation (i) in the case of a US$ Bank, to make U.S. Loans to Chrysler and
(ii) in the case of a C$ Bank, to make C$ Prime Loans to and accept Bankers'
Acceptances from Chrysler Canada, provided, that, after giving effect thereto,
as applicable, (x) the aggregate principal amount of a US$ Bank's U.S. Loans
shall not exceed such US$ Bank's U.S. Commitment as set forth opposite the
undersigned Bank's name on said Schedule I (or, if less, its U.S. Net
Commitment) and (y) the aggregate principal amount (US$ Equivalent) of a C$
Bank's C$ Prime Loans and Bankers' Acceptances shall not exceed such C$ Bank's
Canadian Commitment as set forth opposite the undersigned Bank's name on said
Schedule I, in each case as the amount of such U.S. Commitment or Canadian
Commitment, as applicable, may be changed from time to time as provided in the
Credit Agreement. Capitalized terms defined in the Credit Agreement shall have
their respective defined meanings herein.
________________________________
(NAME OF BANK)
By_______________________________
Title:
As of April 24, 1997
93
EXHIBIT F-2 TO
REVOLVING CREDIT AGREEMENT
[FORM OF FOREIGN CURRENCY SUBFACILITY ADDENDUM]
FOREIGN CURRENCY SUBFACILITY ADDENDUM
To: The Chase Manhattan Bank, as Administrative Agent
From: Chrysler Corporation
[Insert name[s] of Foreign Subsidiary Borrower[s]]
1. This Foreign Currency Subfacility Addendum is being delivered to you
pursuant to subsection 11.1(a) of the Revolving Credit Agreement, dated as of
April 24, 1997, among Chrysler Corporation ("Chrysler"), Chrysler Canada Ltd.,
the Banks parties thereto, Royal Bank of Canada, as Canadian Administrative
Agent, and The Chase Manhattan Bank, as Administrative Agent (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
2. The effective date (the "Addendum Effective Date") of this Foreign
Currency Subfacility Addendum will be ______________________ __, 19__.
3. Please be advised that, as of the Addendum Effective Date, the
credit facility described below is hereby designated as a "Foreign Currency
Subfacility" for the purposes of the Credit Agreement.
TYPE OF SUBFACILITY:*/
FOREIGN CURRENC[Y][IES]:
FOREIGN CURRENCY SUBFACILITY Foreign Currency Subfacility
MAXIMUM BORROWING AMOUNTS: Name of Bank Maximum Borrowing Amount
------------ ----------------------------
$
__________________________________
*/ Insert short description of terms of Foreign Currency Subfacility, and state
whether it is designated as a Foreign Committed Subfacility or a Foreign
Uncommitted Subfacility.
2
94
3
4. Chrysler hereby represents and warrants that (i) the documentation
complies in all respects with the requirements of Section 11 of the Credit
Agreement and (ii) ______________ of ______________**/ contains an express
acknowledgement that such Foreign Currency Subfacility shall be subject to the
provisions of Section 11 of the Credit Agreement.
CHRYSLER CORPORATION
By ___________________________
Title:
[INSERT NAME OF FOREIGN SUBSIDIARY
BORROWER]
By ___________________________
Title:
[NAME OF BANK]***/
By ___________________________
Title:
Acknowledged:
THE CHASE MANHATTAN BANK, as Administrative Agent
By__________________________
Title:
____________________
**/ Provide citation to relevant provision from the documentation and attach
page containing such provision.
***/ In lieu of executing Foreign Currency Subfacility Addendum, Bank(s) may
instead attach such Addendum as an Exhibit to the relevant Foreign
Currency Subfacility documentation.
95
EXHIBIT G TO
REVOLVING CREDIT AGREEMENT
[FORM OF CLOSING CERTIFICATE]
CLOSING CERTIFICATE
Pursuant to subsections 6.1(b), (c) and (d) of the Revolving Credit
Agreement dated as of April 24, 1997 (the "Credit Agreement"; unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement) among CHRYSLER CORPORATION
("Chrysler"), CHRYSLER CANADA LTD. ("Chrysler Canada"), the Banks parties
thereto, ROYAL BANK OF CANADA, as Canadian Administrative Agent, and THE CHASE
MANHATTAN BANK, as Administrative Agent, the undersigned ________ of [Chrysler]
[Chrysler Canada] hereby certifies as follows:
1. The representations and warranties of [Chrysler] [Chrysler Canada] contained
in the Credit Agreement or in any certificate, document or financial or other
statement furnished by or on behalf of [Chrysler] [Chrysler Canada] pursuant to
or in connection with the Credit Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as if made on the
date hereof except for representations and warranties stated to relate to a
specific earlier date, in which case such representations and warranties were
true and correct in all material respects as of such earlier date;
2. No Default or Event of Default has occurred and is continuing as
of the date hereof or after giving effect to any Loans to be made on the
date hereof; and
3. ____________________ is and at all times since ______________
19__, has been the duly elected and qualified [Assistant] Secretary of
[Chrysler] [Chrysler Canada] and the signature set forth on the signature
line for such officer below is such officer's true and genuine signature;
and the undersigned [Assistant] Secretary of [Chrysler] [Chrysler Canada] hereby
certifies as follows:
4. There are no liquidation or dissolution proceedings pending or to
my knowledge threatened against [Chrysler] [Chrysler Canada], nor to my
knowledge has any other event occurred affecting or threatening the
corporate existence of [Chrysler] [Chrysler Canada];
5. [Chrysler] [Chrysler Canada] is a corporation duly organized,
validly existing and in good standing under the laws of [Delaware]
[Canada];
6. Attached hereto as Exhibit A is a complete and correct copy of
resolutions duly adopted by the Board of Directors (or a duly authorized
committee thereof) of [Chrysler] [Chrysler Canada] on _________, 19__; such
resolutions have not in any way been amended, modified, revoked or
rescinded and have been in full force and effect since their adoption to
and including the date hereof and are now in full force and effect; such
resolutions are the only corporate proceedings of [Chrysler] [Chrysler
Canada] now in force relating to or affecting the matters referred to
therein;
96
2
7. Attached hereto as Exhibit B is a complete and correct copy of the
by-laws of [Chrysler] [Chrysler Canada] as in effect at all times since
_________________, 19__ to and including the date hereof; and attached
hereto as Exhibit C is a true and complete copy of the certificate of
incorporation of [Chrysler] [Chrysler Canada] as in effect at all times
since ___________________, 19__ to and including the date hereof; and
8. The following persons are now duly elected and qualified officers
of [Chrysler] [Chrysler Canada] holding the offices indicated next to their
respective names below, and such officers have held such offices with
[Chrysler] [Chrysler Canada] at all times since ________________, 19__ to
and including the date hereof, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such
officers, and each of such officers is duly authorized to execute and
deliver on behalf of [Chrysler] [Chrysler Canada] the Credit Agreement and
any certificate or other document to be delivered by [Chrysler] [Chrysler
Canada] pursuant to the Credit Agreement:
Name Office Signature
---- ------ ---------
__________ [________] _________________
__________ [Assistant] Secretary _________________
IN WITNESS WHEREOF, the undersigned have hereto set our names.
________ _______________
Title: [________] Title: [Assistant] Secretary
Date: April 24, 1997
97
EXHIBIT H TO
REVOLVING CREDIT AGREEMENT
[FORM OF U.S. LOAN PROMISSORY NOTE]
U.S. LOAN PROMISSORY NOTE
$___________
New York, New York
___________, 199_
FOR VALUE RECEIVED, the undersigned, Chrysler Corporation, a Delaware
corporation ("Chrysler"), hereby unconditionally promises to pay to the order of
[NAME OF BANK] (the "Bank") at the office of The Chase Manhattan Bank, located
at 270 Park Avenue, New York, New York 10017, in lawful money of the United
States of America and in immediately available funds, on the Termination Date
the principal amount of (a) [AMOUNT IN WORDS] DOLLARS ($__________), or, if
less, (b) the aggregate unpaid principal amount of all U.S. Loans made by the
Bank to Chrysler pursuant to subsection 2.1 of the Credit Agreement, as
hereinafter defined. Chrysler further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time outstanding
at the rates and on the dates specified in subsection 4.2 of such Credit
Agreement.
The holder of this promissory note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof, the date, Type and amount
of each U.S. Loan made pursuant to the Credit Agreement and the date and amount
of each payment or prepayment of principal thereof, each continuation thereof,
each conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period with respect thereto. Each
such endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of Chrysler in respect of any
U.S. Loan.
This promissory note (a) has been issued pursuant to subsection 13.6(g) of
the Revolving Credit Agreement dated as of April 24, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Chrysler, Chrysler Canada Ltd., a Canadian corporation, the Banks from
time to time parties thereto, Royal Bank of Canada, as Canadian Administrative
Agent, and The Chase Manhattan Bank, as Administrative Agent, (b) is subject to
the provisions of the Credit Agreement and (c) is subject to prepayment in whole
or in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default specified
in the Credit Agreement, all amounts then remaining unpaid on this promissory
note shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement.
All parties now and hereafter liable with respect to this promissory note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
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2
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
CHRYSLER CORPORATION
By: ________________________
Title:
99
Schedule A
to U.S. Loan Promissory Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
Amount Amount of Base Rate
Amount of Base Rate Converted to Amount of Principal of Loans Converted to Unpaid Principal Balance Notation
Date Loans Base Rate Loans Base Rate Loans Repaid Eurodollar Loans of Base Rate Loans Made By
Schedule B
to U.S. Loan Promissory Note
100
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Interest Period Amount of Amount of
Amount Converted and Eurodollar Principal of Eurodollar Loans Unpaid Principal
Amount of to Eurodollar Rate with Respect Eurodollar Loans Converted to Base Balance of Notation
Date Eurodollar Loans Loans Thereto Repaid Rate Loans Eurodollar Loans Made By