Exhibit 10-RRRR
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MASTER RECEIVABLES PURCHASE AGREEMENT
Made as of July 24, 1995
Between
CHRYSLER CREDIT CANADA LTD.
as Seller and Collector
and
THE ROYAL TRUST COMPANY
as trustee of
PURE TRUST
as Purchaser
and
CHRYSLER FINANCIAL CORPORATION
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Barristers & Solicitors
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1 -- INTERPRETATION
1.1 Certain Defined Terms.. . . . . . . . . . . . . . . . . . . . . 2
(a) APR. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) Administrative Charges . . . . . . . . . . . . . . . . . . 2
(c) Adverse Claim. . . . . . . . . . . . . . . . . . . . . . . 2
(d) Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . 2
(e) Aggregate Prepayment Amount . . . . . . . . . . . . . . . 2
(f) Agreement . . . . . . . . . . . . . . . . . . . . . . . . 2
(g) Applicable Deferred Purchase Price . . . . . . . . . . . . 2
(h) Assignment . . . . . . . . . . . . . . . . . . . . . . . . 3
(i) ▇▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . . . . . . . 3
(j) Business Day . . . . . . . . . . . . . . . . . . . . . . . 3
(k) Canadian Dollars . . . . . . . . . . . . . . . . . . . . . 3
(m) Cap Fee. . . . . . . . . . . . . . . . . . . . . . . . . . 3
(n) Chrysler Financial . . . . . . . . . . . . . . . . . . . . 3
(o) Closing Date . . . . . . . . . . . . . . . . . . . . . . . 3
(p) Collateral . . . . . . . . . . . . . . . . . . . . . . . . 3
(q) Collections. . . . . . . . . . . . . . . . . . . . . . . . 3
(r) Collector. . . . . . . . . . . . . . . . . . . . . . . . . 4
(s) Collector Fee. . . . . . . . . . . . . . . . . . . . . . . 4
(t) Concentration Limit. . . . . . . . . . . . . . . . . . . . 4
(u) Credit and Collection Policy . . . . . . . . . . . . . . . 4
(v) Credit Support Agreement . . . . . . . . . . . . . . . . . 4
(w) Cut-Off Date . . . . . . . . . . . . . . . . . . . . . . . 4
(x) Dealer . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(y) Defaulted Loan . . . . . . . . . . . . . . . . . . . . . . 4
(z) Deferred Purchase Account. . . . . . . . . . . . . . . . . 4
(aa) Deferred Purchase Price. . . . . . . . . . . . . . . . . . 5
(ab) Discount Rate. . . . . . . . . . . . . . . . . . . . . . . 5
(ac) Eligible Secured Loan. . . . . . . . . . . . . . . . . . . 5
(ad) Excess Spread. . . . . . . . . . . . . . . . . . . . . . . 8
(ae) Final Collection Date. . . . . . . . . . . . . . . . . . . 8
(af) Financial Services Agent . . . . . . . . . . . . . . . . . 8
(ag) General Account. . . . . . . . . . . . . . . . . . . . . . 8
(ah) Hedging Agreement. . . . . . . . . . . . . . . . . . . . . 8
(ai) Increased Cost . . . . . . . . . . . . . . . . . . . . . . 8
(aj) Indenture Trustee. . . . . . . . . . . . . . . . . . . . . 9
(ak) Ineligible Secured Loan. . . . . . . . . . . . . . . . . . 9
(al) Insolvency Event . . . . . . . . . . . . . . . . . . . . . 9
(am) Issuer Trustee . . . . . . . . . . . . . . . . . . . . . . 10
(an) Liquidations . . . . . . . . . . . . . . . . . . . . . . . 10
(ao) Liquidity Agreement . . . . . . . . . . . . . . . . . . . 10
(ap) Loan Receivables . . . . . . . . . . . . . . . . . . . . . 10
(aq) Lock-Up Event. . . . . . . . . . . . . . . . . . . . . . . 10
(ar) Losses . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(as) ▇▇▇▇▇'▇. . . . . . . . . . . . . . . . . . . . . . . . . . 11
(at) Net Book Value . . . . . . . . . . . . . . . . . . . . . . 11
(au) Net Proceeds . . . . . . . . . . . . . . . . . . . . . . . 11
(av) Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(aw) Obligor. . . . . . . . . . . . . . . . . . . . . . . . . . 12
(ax) Officer's Certificate. . . . . . . . . . . . . . . . . . . 12
(ay) Pay Aheads . . . . . . . . . . . . . . . . . . . . . . . . 12
(az) Permitted Investments. . . . . . . . . . . . . . . . . . . 12
(ba) Person . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(bb) Portfolio Delinquency Ratio. . . . . . . . . . . . . . . . 12
(bc) Portfolio Event. . . . . . . . . . . . . . . . . . . . . . 12
(bd) Portfolio Loss Ratio . . . . . . . . . . . . . . . . . . . 12
(be) Portfolio Report . . . . . . . . . . . . . . . . . . . . . 13
(bf) Prepayment Amount. . . . . . . . . . . . . . . . . . . . . 13
(bg) Prime Rate . . . . . . . . . . . . . . . . . . . . . . . . 13
(bh) Principal. . . . . . . . . . . . . . . . . . . . . . . . . 13
(bi) Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 13
(bj) Program Amount . . . . . . . . . . . . . . . . . . . . . . 13
(bk) Purchase . . . . . . . . . . . . . . . . . . . . . . . . . 13
(bl) Purchase Discount. . . . . . . . . . . . . . . . . . . . . 13
(bm) Purchased Assets . . . . . . . . . . . . . . . . . . . . . 14
(bn) Purchase Price . . . . . . . . . . . . . . . . . . . . . . 14
(bo) Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . 14
(bp) Purchaser's Account. . . . . . . . . . . . . . . . . . . . 14
(bq) Purchaser's Indebtedness . . . . . . . . . . . . . . . . . 14
(br) Pure Trust . . . . . . . . . . . . . . . . . . . . . . . . 14
(bs) Records. . . . . . . . . . . . . . . . . . . . . . . . . . 14
(bt) Related Document . . . . . . . . . . . . . . . . . . . . . 14
(bu) Related Collateral . . . . . . . . . . . . . . . . . . . . 15
(bv) Related Secured Loan Rights. . . . . . . . . . . . . . . . 15
(bw) Related Security . . . . . . . . . . . . . . . . . . . . . 15
(bx) Related Terms Schedule . . . . . . . . . . . . . . . . . . 15
(by) Required APR . . . . . . . . . . . . . . . . . . . . . . . 15
(bz) Required Deferred Amount . . . . . . . . . . . . . . . . . 15
(ca) Required Reserve . . . . . . . . . . . . . . . . . . . . . 16
(cb) Reserve Rate . . . . . . . . . . . . . . . . . . . . . . . 16
(cc) Responsible Officer. . . . . . . . . . . . . . . . . . . . 16
(cd) Secured Loans. . . . . . . . . . . . . . . . . . . . . . . 16
(ce) Secured Loan Rights. . . . . . . . . . . . . . . . . . . . 17
(cf) Security Interest. . . . . . . . . . . . . . . . . . . . . 17
(cg) Seller . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(ch) Seller Receivable. . . . . . . . . . . . . . . . . . . . . 17
(ci) Seller Receivable Value. . . . . . . . . . . . . . . . . . 18
(cj) Seller Reimbursable Amount . . . . . . . . . . . . . . . . 18
(ck) Settlement Date. . . . . . . . . . . . . . . . . . . . . . 18
(cl) Settlement Period. . . . . . . . . . . . . . . . . . . . . 18
(cm) Significant Event. . . . . . . . . . . . . . . . . . . . . 18
(cn) Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . 18
(co) Successor Collector. . . . . . . . . . . . . . . . . . . . 18
(cp) Terms Schedule . . . . . . . . . . . . . . . . . . . . . . 18
(cq) Transaction. . . . . . . . . . . . . . . . . . . . . . . . 18
(cr) Trust Indenture. . . . . . . . . . . . . . . . . . . . . . 18
1.2 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.3 References to Sections and Exhibits.. . . . . . . . . . . . . . 19
1.4 Number and Gender. . . . . . . . . . . . . . . . . . . . . . . 19
1.6 Defined Terms Used in Trust Indenture, etc. . . . . . . . . . . 19
(a) Buyer Payment Amount . . . . . . . . . . . . . . . . . . . 19
(b) Buyer Proceeds . . . . . . . . . . . . . . . . . . . . . . 19
(c) Collection . . . . . . . . . . . . . . . . . . . . . . . . 19
(d) Contract . . . . . . . . . . . . . . . . . . . . . . . . . 19
(e) Distribution Date. . . . . . . . . . . . . . . . . . . . . 19
(f) Distribution Statement . . . . . . . . . . . . . . . . . . 19
(g) Hedge Agreement . . . . . . . . . . . . . . . . . . . . . 19
(h) Holdback . . . . . . . . . . . . . . . . . . . . . . . . . 20
(i) Loss Ratio . . . . . . . . . . . . . . . . . . . . . . . . 20
(j) Receivable . . . . . . . . . . . . . . . . . . . . . . . . 20
(k) Seller Distributable Amount . . . . . . . . . . . . . . . 20
1.7 Accounting Principles.. . . . . . . . . . . . . . . . . . . . . 20
1.8 Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1.9 Computation of Time Periods.. . . . . . . . . . . . . . . . . . 20
1.10 List of Exhibits. . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2 -- PURCHASE OF SECURED LOANS
2.1 Purchase Procedures - Terms Schedules.. . . . . . . . . . . . . 21
(a) General. . . . . . . . . . . . . . . . . . . . . . . . . . 21
(b) Related Terms Schedules. . . . . . . . . . . . . . . . . . 21
(c) Inconsistencies. . . . . . . . . . . . . . . . . . . . . . 21
2.3 Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Amount. . . . . . . . . . . . . . . . . . . . . . . . . . 21
(b) Satisfaction of Purchase Price.. . . . . . . . . . . . . . 22
(c) Cap Fee. . . . . . . . . . . . . . . . . . . . . . . . . . 22
(d) Effect of Payment. . . . . . . . . . . . . . . . . . . . . 22
(e) Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.4 Rectifying Adjustments to Purchase Price. . . . . . . . . . . . 23
2.5 Liquidation Procedures. . . . . . . . . . . . . . . . . . . . . 23
(a) Monthly Remittances. . . . . . . . . . . . . . . . . . . . 23
(b) Daily Remittances. . . . . . . . . . . . . . . . . . . . . 24
(c) Transfers of Purchase Discount to Purchaser. . . . . . . . 24
(d) Transfers of Other Amounts to Purchaser's Account. . . . . 25
(e) Advances by Seller.. . . . . . . . . . . . . . . . . . . . 26
(f) Payments from Purchaser's Account. . . . . . . . . . . . . 26
(g) Shortfalls: Purchaser's Account. . . . . . . . . . . . . . 28
(h) Other Distributions from Purchaser's Account.. . . . . . . 28
(i) Shortfalls: Other Distributions. . . . . . . . . . . . . . 28
(j) Remaining Amounts. . . . . . . . . . . . . . . . . . . . . 29
(k) Separate Transactions. . . . . . . . . . . . . . . . . . . 29
2.6 Deferred Purchase Account.. . . . . . . . . . . . . . . . . . . 29
(a) Distributions. . . . . . . . . . . . . . . . . . . . . . . 29
(b) Final Distributions. . . . . . . . . . . . . . . . . . . . 30
(c) Transactions.. . . . . . . . . . . . . . . . . . . . . . . 30
2.7 Discount Rate and Program Fee.. . . . . . . . . . . . . . . . . 30
(a) Discount Rate. . . . . . . . . . . . . . . . . . . . . . . 30
(b) Purchaser's Indebtedness.. . . . . . . . . . . . . . . . . 30
2.8 Clean Up Repurchase.. . . . . . . . . . . . . . . . . . . . . . 30
2.9 Deemed Collections. . . . . . . . . . . . . . . . . . . . . . . 31
(a) Reductions, Cancellations and Extensions.. . . . . . . . . 31
(b) Repurchase on Breach of Warranty.. . . . . . . . . . . . . 31
(c) Effect of Deemed Collections.. . . . . . . . . . . . . . . 32
2.10 Reporting.. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(a) Reports. . . . . . . . . . . . . . . . . . . . . . . . . . 32
(b) Records. . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.11 Payments and Computations.. . . . . . . . . . . . . . . . . . . 32
(a) Remittances where Seller Not Collector.. . . . . . . . . . 32
(b) Payments.. . . . . . . . . . . . . . . . . . . . . . . . . 32
(c) Interest on Overdue Amounts. . . . . . . . . . . . . . . . 33
(d) No Deduction.. . . . . . . . . . . . . . . . . . . . . . . 33
2.12 Further Action to Protect Purchased Assets. . . . . . . . . . . 33
2.13 Ineligible Secured Loans. . . . . . . . . . . . . . . . . . . . 33
2.14 Retransfer of Purchased Assets. . . . . . . . . . . . . . . . . 33
2.15 Permitted Investments.. . . . . . . . . . . . . . . . . . . . . 34
2.16 Allocation of Collections.. . . . . . . . . . . . . . . . . . . 34
SECTION 3 -- COLLECTION AND SERVICING OF SECURED LOANS
3.1 Designation of the Collector. . . . . . . . . . . . . . . . . . 34
3.4 Duties of the Collector, etc. . . . . . . . . . . . . . . . . . 35
(a) Duties and Powers. . . . . . . . . . . . . . . . . . . . . 35
(b) Copies of Documents. . . . . . . . . . . . . . . . . . . . 35
(c) Operating Procedures.. . . . . . . . . . . . . . . . . . . 35
(d) Software. . . . . . . . . . . . . . . . . . . . . . . . . 36
(e) Default Interest.. . . . . . . . . . . . . . . . . . . . . 36
(f) Termination. . . . . . . . . . . . . . . . . . . . . . . . 36
(g) Marking of Records.. . . . . . . . . . . . . . . . . . . . 36
(h) Termination of Secured Loans.. . . . . . . . . . . . . . . 36
3.5 Collector Fee.. . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4 -- CONDITIONS PRECEDENT
4.1 Purchaser's Conditions Precedent to Each Purchase.. . . . . . . 37
(a) Initial Purchase.. . . . . . . . . . . . . . . . . . . . . 37
(b) Subsequent Purchases.. . . . . . . . . . . . . . . . . . . 39
4.2 Seller's Conditions Precedent.. . . . . . . . . . . . . . . . . 40
(a) Initial Purchase.. . . . . . . . . . . . . . . . . . . . . 40
(b) Subsequent Purchases.. . . . . . . . . . . . . . . . . . . 40
SECTION 5 -- REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of the Seller. . . . . . . . . . 41
5.2 Representations and Warranties of Chrysler Financial. . . . . . 44
5.3 Representations and Warranties of the Purchaser.. . . . . . . . 46
SECTION 6 -- COVENANTS OF THE SELLER AND CHRYSLER FINANCIAL
6.1 Affirmative Covenants of the Seller.. . . . . . . . . . . . . . 47
6.2 Negative Covenants of the Seller. . . . . . . . . . . . . . . . 50
6.3 Covenants of Chrysler Financial.. . . . . . . . . . . . . . . . 51
SECTION 7 -- SIGNIFICANT EVENTS
7.1 Meaning of Significant Event. . . . . . . . . . . . . . . . . . 52
7.2 Action Upon a Significant Event.. . . . . . . . . . . . . . . . 53
(a) Rights of Purchaser. . . . . . . . . . . . . . . . . . . . 53
(b) Transitional Provisions. . . . . . . . . . . . . . . . . . 54
SECTION 8 -- MATTERS RELATING TO LIABILITY AND RESPONSIBILITIES
8.1 Delegation in Favour of Financial Services Agent. . . . . . . . 54
8.2 Liability of Purchaser and Financial Services Agent.. . . . . . 54
8.3 The Financial Services Agent and Affiliates.. . . . . . . . . . 55
8.4 Responsibilities of the Seller and the Purchaser. . . . . . . . 55
8.5 Power of Attorney.. . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9 -- INDEMNIFICATION
9.1 Indemnities by the Seller.. . . . . . . . . . . . . . . . . . . 56
9.3 Limited Indemnity by the Seller.. . . . . . . . . . . . . . . . 57
9.4 Co-operation in Litigation and Proceedings. . . . . . . . . . . 58
SECTION 10 -- MISCELLANEOUS
10.1 Amendments, etc.. . . . . . . . . . . . . . . . . . . . . . . . 58
(a) General. . . . . . . . . . . . . . . . . . . . . . . . . . 58
(b) Third Party Consents.. . . . . . . . . . . . . . . . . . . 58
10.2 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . 59
10.3 Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.4 No Waiver; Remedies.. . . . . . . . . . . . . . . . . . . . . . 59
10.5 Binding Effect; Assignability; . . . . . . . . . . . . . . . . 59
(a) General. . . . . . . . . . . . . . . . . . . . . . . . . . 59
(b) Sales etc. by Purchaser. . . . . . . . . . . . . . . . . . 59
10.6 Termination and Survival. . . . . . . . . . . . . . . . . . . . 60
10.7 Performance by Financial Services Agent.. . . . . . . . . . . . 60
10.8 Payments by Seller. . . . . . . . . . . . . . . . . . . . . . . 60
(a) Method of Payment. . . . . . . . . . . . . . . . . . . . . 60
(b) Interest on Overdue Payments . . . . . . . . . . . . . . . 60
10.9 Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . . 61
10.10 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . 61
(a) Fees and Expenses. . . . . . . . . . . . . . . . . . . . . 61
(b) Taxes, etc.. . . . . . . . . . . . . . . . . . . . . . . . 61
10.12 Failure to Perform. . . . . . . . . . . . . . . . . . . . . . . 62
10.13 Consent to Jurisdiction; Waiver of Immunities . . . . . . . . . 62
(a) Submission to Jurisdiction.. . . . . . . . . . . . . . . . 62
(b) Other Jurisdictions. . . . . . . . . . . . . . . . . . . . 62
(c) Waiver of Immunity.. . . . . . . . . . . . . . . . . . . . 63
10.14 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 63
(a) General. . . . . . . . . . . . . . . . . . . . . . . . . . 63
(b) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . 63
10.15 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . 63
10.16 Execution in Counterparts . . . . . . . . . . . . . . . . . . . 63
10.17 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . 64
Exhibit 1.1(h) - Form of Assignment
Exhibit 1.1(cp) -- Form of Terms Schedule
Exhibit 1.1(be) - Sample Portfolio Report
Exhibit 1.1(as) - Permitted Investments
Exhibit 1.1(bz)(2)(B)(iii) - Dollar Weighted Average Contractual Life
Calculation
Exhibit 4.1(a)(17)-1 - Form of Opinion of Seller's Counsel
Exhibit 4.1(a)(17)-2 - Form of Opinion of Chrysler Financial's General Counsel
Exhibit 4.2(a)(5) - Form of Opinion of Purchaser's Counsel
Exhibit 5.1(p) -- Historical Collection Results
MASTER RECEIVABLES PURCHASE AGREEMENT
This Agreement is made as of July 24, 1995, between
CHRYSLER CREDIT CANADA LTD.,
a corporation amalgamated under
the laws of Canada,
as Seller and Collector
and
THE ROYAL TRUST COMPANY,
as trustee of PURE TRUST
a trust established under
the laws of the Province of Ontario,
as Purchaser
and
CHRYSLER FINANCIAL CORPORATION,
a corporation incorporated under
the laws of the State of Michigan,
RECITALS
A. The Seller is the creditor under certain Secured Loans and the Seller and
the Purchaser anticipate entering into one or more transactions whereby the
Seller will sell to the Purchaser the Seller's interest in certain of its
Secured Loans.
B. The Collector is willing to carry out the duties and obligations to be
performed by it pursuant to the provisions hereof.
C. Chrysler Financial has agreed to ensure the due performance of all of the
obligations of the Seller (including those arising in its capacity as
Collector, if the Seller is at such time the Collector) under this Agreement
and any Related Document to which the Seller is a party.
FOR VALUE RECEIVED, the parties agree as follows:
SECTION 1 -- INTERPRETATION
1.1 Certain Defined Terms. In this Agreement, the following terms have the
following meanings:
(a) APR of any Purchased Assets means the weighted average of the annual
percentage rate of interest payable on the Purchased Assets, as such weighted
average is determined in accordance with the Seller's Credit and Collection
Policy.
(b) Administrative Charges means extension fees, insurance premiums, charges
for returned cheques or dishonoured payments or dishonoured transfer
instructions and other similar charges and, before the appointment of a Person
other than the Seller as Collector, late payment charges and refinance
charges.
(c) Adverse Claim means any lien, security interest, charge, encumbrance,
ownership interest or other right or claim of any Person (other than the
Purchaser) where such right or claim ranks ahead of or pari passu with the
interests of the Purchaser created under this Agreement.
(d) Affiliate means, when used with respect to any Person, an affiliate of
such Person as defined in the Canada Business Corporations Act from time to
time in force.
(e) Aggregate Prepayment Amount means, in the case of a Transaction evidenced
by a single Terms Schedule, the Prepayment Amount in respect thereof or, in
the case of a Transaction evidenced by Related Terms Schedules, the sum of the
Prepayment Amounts specified in each of the Related Terms Schedules.
(f) Agreement means this agreement and, in the context of a Transaction, the
agreement constituted by the execution of the relevant Terms Schedule or
Related Terms Schedules, as amended, modified, supplemented, restated or
replaced from time to time, including the Exhibits thereto, and the
expressions "herein", "hereof", "hereto", "hereunder", and similar expressions
refer to this Agreement and not to any particular Section or other portion
hereof; and "including" means "including without limitation".
(g) Applicable Deferred Purchase Price means, in respect of a Purchase made
pursuant to a Transaction constituted by one or more Related Terms Schedules,
that portion of the Deferred Purchase Price for such Transaction equal to the
product of such Deferred Purchase Price and a fraction the numerator of which
is the aggregate Net Book Value of the Purchased Assets subject to such
Purchase and the denominator of which is the aggregate Net Book Value of all
the Purchased Assets subject to such Transaction.
(h) Assignment means an assignment of Secured Loans and Related Secured Loan
Rights to be entered into pursuant to Section 2.2 between the Purchaser, as
purchaser, and the Seller, as seller, substantially in the form attached as
Exhibit 1.1(h).
(i) ▇▇▇▇▇▇▇▇ means, for any Settlement Period, the total contractual amount
payable by Obligors relating to the Purchased Assets on a date within a
Settlement Period as shown on the applicable Portfolio Report for such
Settlement Period (which amount shall not include Administrative Charges or
any sales taxes or other taxes required to be collected and remitted by the
Seller), other than ▇▇▇▇▇▇▇▇ in respect of Defaulted Loans.
(j) Business Day means any day, other than a Saturday or Sunday, on which
banks are open for business in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
(k) Canadian Dollars or "$ " means the lawful currency of Canada.
(l) Cap Agreement means, in respect of any Purchase, an agreement dated the
applicable Closing Date between the Purchaser and Chrysler Financial in the
form of the 1992 International Swaps and Derivatives Association Master
Agreement (Multicurrency -- Cross Border) together with the related Schedule
and Confirmation providing an interest rate cap to the Purchaser for the
purpose of hedging its interest rate exposure in respect of Purchaser's
Indebtedness.
(m) Cap Fee has the meaning given to it in Section 2.3(c).
(n) Chrysler Financial means Chrysler Financial Corporation, its successors
and permitted assigns.
(o) Closing Date means, in respect of each Purchase, the date specified as
such in the relevant Terms Schedule.
(p) Collateral means a new or used automobile or light duty truck and other
personal property, together with all equipment, attachments, additions,
accessories and enhancements thereto, securing an Obligor's indebtedness and
obligations under a Secured Loan.
(q) Collections means all cash collections, including, without limitation, Pay
Aheads, and other cash proceeds of Related Secured Loan Rights other than Net
Proceeds, but not including any sales taxes or other taxes which are required
to be collected and remitted by the Collector or, before the appointment of a
Person other than the Seller as Collector, Administrative Charges.
(r) Collector means, at any time, the Seller, its successor or any other
Person or its successor who is then the Collector in respect of any particular
Transaction in accordance with Section 3.1.
(s) Collector Fee has the meaning given to it in Section 3.5.
(t) Concentration Limit means the percentage of the Aggregate Prepayment
Amount specified in the relevant Terms Schedule or Related Terms Schedules.
(u) Credit and Collection Policy means the customary policies and procedures
of the Seller as represented to and approved by the Purchaser relating to
certain aspects of the granting of credit, the making of collections and the
enforcing of contracts relating to Secured Loans and their related servicing
as such policies and procedures may be changed from time to time in accordance
with Section 6.2(b).
(v) Credit Support Agreement means any loan or credit agreement entered into
between the Purchaser as borrower and one or more lenders for the purpose of
repaying Notes and repaying advances under Liquidity Agreements,
(w) Cut-Off Date means, in respect of each Purchase, the date specified as
such in the relevant Terms Schedule.
(x) Dealer means a dealer that sold Collateral to an Obligor and originated
the related Secured Loan.
(y) Defaulted Loan means a Secured Loan
(1) under which an amount greater than or equal to the amount required to
be paid under such Secured Loan for the calendar month ending on the
last day of the most recently completed Settlement Period has been
outstanding for a period greater than or equal to three calendar
months, or
(2) the Obligor (other than a guarantor) of which has taken any action,
or suffered any event to occur which is continuing, of the type
described in Section 7.1(d); provided, however, that if a Loan that
is a Defaulted Loan is also at the time that such Loan became a
Defaulted Loan an Ineligible Loan, it will be treated as an
Ineligible Loan hereunder.
(z) Deferred Purchase Account means, in respect of each Transaction, the
interest bearing account maintained by the Purchaser in trust for the Seller
at the main Toronto branch of Royal Bank of Canada, with the account number
specified as such in the relevant Terms Schedule or Related Terms Schedules or
such other account which is designated by the Purchaser in writing by notice
to the Seller as the Deferred Purchase Account for the purposes hereof.
(aa) Deferred Purchase Price means, in respect of each Transaction, an amount
equal to in the aggregate for such Transaction, the sum of:
(1) the amount by which
(A) the Net Book Value of the Purchased Assets as determined as
of the relevant Closing Date exceeds
(B) the Aggregate Prepayment Amount,
and
(2) the amount, if any, by which the aggregate amount of interest
receivable by the Purchaser accruing in each Settlement Period in
respect of the Purchased Assets exceeds the Purchase Discount
applicable to such Settlement Period,
as increased, reduced, refunded or paid from time to time in accordance with
Sections 2.4, 2.5(c), 2.5(f), 2.5(h), 2.5(j), 2.6(a)(1), 2.6(a)(2), 2.8, 2.9
and 2.11.
(ab) Discount Rate means, in respect of each Transaction, the rate for each
Settlement Period as notified to the Seller by the Purchaser in accordance
with Section 2.7(a).
(ac) Eligible Secured Loan means a Secured Loan which, together with the
Collateral related thereto, meets all of the following criteria on the
relevant Cut-Off Date:
(1) the Obligor thereunder is a Person resident in Canada;
(2) the Secured Loan is not a Defaulted Loan;
(3) the Secured Loan is payable in Canada only and is denominated in
Canadian Dollars;
(4) the principal amount initially owing under the Secured Loan does
not exceed $50,000;
(5) the Secured Loan:
(A) has been duly authorized, executed and delivered by the parties
thereto;
(B) together with all Related Secured Loan Rights (including any
guarantee, indemnity or agreement referred to in Section
1.1(ce)(5) of the definition of Secured Loan Rights), is and
remains in full force and effect, unamended except as permitted
under Section 1.1(ac)(8), and constitutes the legal, valid and
binding obligation of the Obligor thereunder enforceable against
such Obligor in accordance with its terms subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar
laws (including personal property security laws of any
applicable jurisdiction) affecting creditors' rights generally
and subject, as to enforceability, to equitable principles of
general application;
(6) to the best of the Seller's knowledge, the Secured Loan is not
subject to any set off, counterclaim or defence whatsoever by the
Obligor;
(7) the Secured Loan and the Related Collateral are free of any Adverse
Claim of any Person (other than the Seller);
(8) the Secured Loan has not been extended or otherwise modified except
in the ordinary course of business and in accordance with the Credit
and Collection Policy in effect at the time of such extension or
modification;
(9) the terms of the Secured Loan do not contravene any laws, rules or
regulations applicable thereto, except where such contravention would
not materially adversely affect the collectability or enforceability
of the Related Secured Loan Rights and except to the extent that
certain of such terms may be found to be of no force or effect by
application of Section 65.1(5) of the Bankruptcy and Insolvency Act
(Canada);
(10) the Secured Loan arose in accordance with and otherwise satisfies the
requirements of the Credit and Collection Policy in effect at the
date of origination of the Secured Loan or the assignment of the
Secured Loan to the Seller;
(11) the Obligor thereunder is not the subject of any insolvency or
bankruptcy proceedings and, to the best of the knowledge of the
Seller, there are no such proceedings pending against such Obligor;
(12) the Obligor thereunder is not an Affiliate of the Seller;
(13) the payments under the Secured Loan of Principal and interest are
required to be made monthly and are calculated on the basis of a
fixed interest rate such that the initial Principal balance of the
Secured Loan will be fully amortized over its contractual term;
(14) the Seller is permitted to assign its rights under the Secured Loan
(A) without notice to or the consent of the Obligor, except to the
extent notice is required under the Conveyancing and Law of Property
Act (Ontario) or the applicable legislation of other jurisdictions in
order for the assignee to enforce the assignment against the Obligor
without joining the assignor, or (B) with notice to or the consent of
the Obligor, and such notice has been given or consent obtained with
respect to the assignments contemplated herein;
(15) the Secured Loan provides that the Obligor is required to keep the
Collateral insured, such insurance to be in form and content
satisfactory to the Seller, at the Obligor's expense, against risk of
theft, collision, damage, destruction or loss for so long as any
amount remains unpaid on the Secured Loan, with loss payable to the
Seller; and the Obligor is required to deliver a copy of all such
insurance policies to the Seller upon request;
(16) all right, title and interest of the original obligee under the
Secured Loan, together with the applicable Related Collateral, has
been absolutely assigned by the original obligee to the Seller by an
agreement in writing and is not subject to re assignment to the
original obligee other than pursuant to the exercise of a right of
recourse against the original obligee, and with respect to each such
original obligee located in the Provinces of British Columbia,
Alberta, Saskatchewan, Manitoba, New Brunswick or Ontario, the Seller
has made all required registrations and filings under the applicable
Personal Property Security Act;
(17) the Related Collateral shall have been delivered to and accepted by
the Obligor in accordance with the terms of the Secured Loan
applicable thereto;
(18) the Related Collateral consists of either a passenger automobile
or light duty truck;
(19) the Secured Loan complies and the Seller has complied with all
requirements of applicable laws and regulations which would affect
the enforceability of such Secured Loan, including consumer
protection legislation and interest rate disclosure legislation;
(20) the applicable Obligor is not resident in either the Yukon Territory
or the Northwest Territories;
(21) the original obligee under such Secured Loan is a Chrysler Canada
Ltd. franchised dealer or an Affiliate of such dealer or a franchised
dealer of a manufacturer other than Chrysler Canada Ltd.;
(22) all required registrations and filings have been made (A) under the
Personal Property Security Acts of British Columbia, Alberta,
Saskatchewan, Manitoba and Ontario to perfect or preserve a purchase
money Security Interest in the applicable Collateral that is located
in those jurisdictions, (B) under the Personal Property Security Act
of New Brunswick, to preserve or perfect in the applicable Collateral
that is located in that jurisdiction (i) a purchase money Security
Interest to the extent that such Security Interest attached on or
after the date that such Personal Property Security Act came into
force or (ii) a Security Interest to the extent that such Security
Interest attached before such date, and (C) under applicable
conditional sales legislation in the other provinces of Canada to
perfect and preserve the Seller's interest in the Related Collateral
that is located in those jurisdictions;
(23) the Secured Loan has an original term not exceeding 72 months and a
remaining term on the Cut-off Date not exceeding 60 months, including
any applicable extension period; and
(24) the Secured Loan has an outstanding gross balance of at least $300 at
the Cut-off Date.
(ad) Excess Spread means, in respect of any Settlement Period, the amount, if
any, by which Collections and Net Proceeds attributable to interest for that
Settlement Period exceed the Purchase Discount for that Settlement Period.
(ae) Final Collection Date means, in respect of each Transaction, the date on
which the Program Amount has been reduced to zero in accordance with the terms
hereof and the Collector (if the Seller is not the Collector) has received the
accrued Collector Fee.
(af) Financial Services Agent means Royal Bank of Canada in its capacity as
financial services agent for Pure Trust or any successor of Royal Bank of
Canada in such capacity.
(ag) General Account means, in respect of each Transaction, an interest
bearing account established by the Purchaser or, at the direction of the
Purchaser, the Collector in trust for the Purchaser, in each case, at the main
Toronto branch of Royal Bank of Canada in accordance with Section 2.5(b) or
such other account which is designated by the Purchaser in writing by notice
to the Collector as the General Account for the purposes hereof.
(ah) Hedging Agreement means any interest rate exchange agreement, interest
rate cap, collar or floor agreement, forward rate agreement or similar
agreement entered into between the Purchaser and a counterparty, and includes
one or more of such agreements, in connection with a Transaction, as
identified in the relevant Terms Schedule or Related Terms Schedules, as the
case may be, and includes the Cap Agreement.
(ai) Increased Cost means any increased cost to the Purchaser of borrowing
under any Liquidity or Credit Support Agreement arising from any payment or
compensation required to be made by the Purchaser to one or more lenders under
a Liquidity Agreement or Credit Support Agreement (each, an "Affected Lender")
if the result of any law, regulation, treaty or official directive or request
(whether or not having the force of law) (including without limitation those
relating to taxation, capital adequacy, reserve requirements, banking or
monetary controls) or any change in or any introduction thereof or change in
the interpretation or application thereof or compliance by such Affected
Lender with the same is that (1) the cost to the Affected Lender of making or
funding a loan to the Purchaser under a Liquidity Agreement or Credit Support
Agreement, as the case may be, is increased, (2) any amount payable to the
Affected Lender or the effective rate of return to the Affected Lender is
reduced, or (3) the Affected Lender makes any payment or foregoes any interest
or other return on or calculated by reference to any amount received or
receivable by it from the Purchaser under the Liquidity Agreement or Credit
Support Agreement, as the case may be.
(aj) Indenture Trustee means Montreal Trust Company of Canada solely in its
capacity as trustee under the Trust Indenture and its successors and permitted
assigns thereunder.
(ak) Ineligible Secured Loan has the meaning given to it in Section 2.13.
(al) Insolvency Event means any of the following events or circumstances:
(1) either the Seller or Chrysler Financial shall generally not pay its
debts as they become due;
(2) either the Seller or Chrysler Financial shall admit in writing its
inability to pay its debts generally or shall make a general
assignment for the benefit of creditors;
(3) either the Seller or Chrysler Financial files a notice of intention,
voluntary petition in bankruptcy or a petition seeking liquidation,
reorganization or an arrangement with creditors to take advantage of
any insolvency or other law;
(4) a receiver shall be appointed for either the Seller or Chrysler
Financial or any substantial part of its property under the terms of
any agreement by which the Seller or Chrysler Financial, as
applicable, is bound, unless such appointment is being actively and
diligently contested by the Seller or Chrysler Financial in good
faith;
(5) any judicial or administrative proceedings shall be instituted by or
against the Seller or Chrysler Financial or any notice of intention
shall be given in respect thereof, seeking to adjudicate it as
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking the entry
of an order for relief by the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial
part of its property where any such proceeding has not been stayed or
dismissed within 45 days of a receiver, custodian or other similar
official being appointed for it or any substantial part of its
property; or
(6) either the Seller or Chrysler Financial takes any corporate action to
authorize any of the actions described in this Section 1.1(al).
(am) Issuer Trustee means The Royal Trust Company solely in its capacity as
trustee of Pure Trust, and its successors and permitted assigns solely in such
capacity.
(an) Liquidations means, with respect to any Settlement Period, the sum of
Collections and Net Proceeds received in such Settlement Period.
(ao) Liquidity Agreement means any loan or credit agreement entered into from
time to time between the Purchaser as borrower and one or more lenders for the
purpose of providing liquidity support for the Notes that have been issued to
fund, in part, the purchase of Purchased Assets.
(ap) Loan Receivables means all amounts due and payable with respect to any
Secured Loan (not including amounts which are due and payable to the Seller
before the relevant Cut-Off Date) including vehicle damage charges and other
moneys payable by an Obligor under a Secured Loan (exclusive of Administrative
Charges, costs, expenses, amounts payable by way of indemnity or taxes
required to be collected and remitted by the Seller).
(aq) Lock-Up Event means, in respect of each Transaction, any of the following
events or circumstances:
(1) the Portfolio Loss Ratio is at any time equal to or greater than
1.75%;
(2) the Portfolio Delinquency Ratio is at any time equal to or greater
than 1.875%;
(3) the Collector fails to make any payment or deposit to be made by it
hereunder when due and such failure remains unremedied for two
Business Days after written notice thereof from the Purchaser;
(4) any Insolvency Event occurs;
(5) a default by the Seller or Chrysler Financial under a Hedging
Agreement entered into in respect of such Transaction; and
(6) on any Settlement Date, after resort to the Deferred Purchase
Account, in accordance with Sections 2.5(c), 2.5(f) and 2.6(a), the
amounts transferred to any other account of the Purchaser pursuant to
Sections 2.5(c), 2.5(d) and 2.5(f)(4) are less than the amounts
required to be transferred in accordance with such Sections. For
greater certainty, a Lock-Up Event will be deemed to occur if the
transfer required by Section 2.5(f)(4)(A) is not made,
notwithstanding that as a result of the Lock-Up Event the required
transfer will be that specified in Section 2.5(f)(4)(B).
(ar) Losses means, for any Settlement Period,
(1) an amount equal to the Net Book Value of such Purchased Assets which
become Defaulted Loans in such Settlement Period, less
(2) the sum of
(A) the portion of the Net Proceeds received by the Purchaser in
such Settlement Period with respect to the disposition of the
Related Collateral with respect to Purchased Assets which became
Defaulted Loans in any prior Settlement Period, and
(B) any other Collections received with respect to Purchased Assets
which became Defaulted Loans in any prior Settlement Period.
(as) Moody's means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereof.
(at) Net Book Value means, at any particular time with respect to any Secured
Loan purchased on a Closing Date, the original Principal amount owing under
such Secured Loan less
(1) all payments of Principal which have been received which were due and
payable under the related Loan Receivables and form part of the
Related Secured Loan Rights;
(2) any Net Proceeds allocable to Principal owing under such Secured
Loan; and
(3) the amount of the Principal portion of any Loan Receivable that was
due and payable before the relevant Cut-Off Date to the extent not
deducted under item (1) above.
(au) Net Proceeds means, with respect to any Purchased Asset, cash proceeds
received by the Collector either from the disposition of Related Collateral
(including dispositions following default by an Obligor and amounts received
in connection with any early termination of Secured Loans negotiated between
the Collector and the applicable Obligor in accordance with Section 3.4(h)) or
from insurance payments in respect of Related Collateral that has been written
off for insurance purposes, net of all reasonable disposition costs and
expenses, any taxes required to be collected and remitted by the Seller and
any amounts required by law to be remitted to the Obligor in respect of such
Purchased Assets.
(av) Notes means the commercial paper promissory notes issued from time to
time by the Purchaser under the Trust Indenture to fund the purchase of
Receivables (as defined therein).
(aw) Obligor means a Person obligated to make payments pursuant to a Secured
Loan, including where the context permits or requires, any person obligated to
make such payments pursuant to any guarantee or indemnity constituting Related
Security.
(ax) Officer's Certificate of any corporation means a certificate signed by
a Responsible Officer of such corporation.
(ay) Pay Aheads means, collectively, all payments made in a Settlement Period
by Obligors with respect to Loan Receivables forming part of the Related
Secured Loan Rights which are not yet due and payable in such Settlement
Period in accordance with the related Secured Loan.
(az) Permitted Investments means investments of a type described in Exhibit
1.1(az) and accrued interest thereon.
(ba) Person means an individual, partnership, corporation, trust, joint
venture, unincorporated association, government (or any agency or political
subdivision thereof) or other entity.
(bb) Portfolio Delinquency Ratio means, in respect of each Transaction, on
each Settlement Date (but before the distributions contemplated by Sections
2.5(c) and 2.5(d)), the average (expressed as a percentage), determined with
respect to each of the three most recently completed calendar months of:
(1) the Net Book Value of Purchased Assets having Loan Receivables in
excess of 10% of the amount of the ▇▇▇▇▇▇▇▇ for a calendar month past
due by more than 60 days from their contractual due date,
divided by
(2) the Net Book Value of the Purchased Assets on the last day of such
calendar month;
except that, for the first and second Settlement Dates following the month in
which the applicable Purchase occurs, the Portfolio Delinquency Ratio shall be
determined by reference to only the most recently completed calendar month and
the two most recently completed calendar months, respectively.
(bc) Portfolio Event means one of the Significant Events described in Section
7.1(f) and Section 7.1(g).
(bd) Portfolio Loss Ratio means, in respect of each Transaction, on each
Settlement Date, (but before the distributions contemplated by Sections 2.5(c)
and 2.5(d)), the average (expressed as a percentage), determined with respect
to each of the four most recently completed calendar months, of
(1) the aggregate Losses incurred in a calendar month,
divided by
(2) the sum of the Liquidations with respect to the Purchased Assets
for such calendar month
except that, for the first, second and third Settlement Dates following the
month in which the applicable Purchase occurs, the Portfolio Loss Ratio shall
be determined by reference to only the most recently completed calendar month,
the two most recently completed calendar months and the three most recently
completed calendar months, respectively.
(be) Portfolio Report means a report substantially in the form of Exhibit
1.1(be).
(bf) Prepayment Amount means, in respect of each Purchase, the amount specified
as such in a Terms Schedule.
(bg) Prime Rate means the annual rate of interest announced from time to time
by Royal Bank of Canada as being its reference rate then in effect for
determining interest rates on Canadian Dollar denominated commercial loans
made in Canada.
(bh) Principal means, with respect to any particular portion of, or payment on
account of, a Loan Receivable included in the Related Secured Loan Rights,
that portion thereof, if any, which represents or should be applied in
reduction of the principal balance of the applicable Secured Loan.
(bi) Proceeds has the meaning given to it in the Personal Property Security
Act (Ontario) and any Act that may be substituted therefor, as from time to
time amended, and in addition, includes personal property in any form derived
directly or indirectly from any dealings with the Related Collateral or that
indemnifies or compensates for the Related Collateral if destroyed or damaged
and proceeds whether or not of the type, class or kind as the original
proceeds.
(bj) Program Amount means, in respect of each Transaction, an amount initially
equal to the Aggregate Prepayment Amount, as such amount may be adjusted from
time to time as a consequence of the payments and transfers contemplated by
Sections 2.4, 2.5, 2.6, 2.8, 2.9 and 2.13.
(bk) Purchase means a purchase of Purchased Assets by the Purchaser on a
Closing Date made pursuant to Section 2.1.
(bl) Purchase Discount means, in respect of each Transaction, in respect of
any particular Settlement Period, the amount equal to
(1) the product of the Discount Rate for the period from and including
the last day of the previous Settlement Period (or, in respect of the
initial Settlement Period, from and including the initial Closing
Date) to but excluding the last day of such Settlement Period
multiplied by the number of days in such period,
(2) divided by 365 or 366, as the case may be, and
(3) multiplied by the daily weighted average of the Program Amount
outstanding during such period.
(bm) Purchased Assets means, in respect of each Transaction, the Secured Loans
listed or referred to in the microfiche attached as the Appendix to a Terms
Schedule or Appendices to the Related Terms Schedules, as the case may be, and
all Related Secured Loan Rights.
(bn) Purchase Price has the meaning given to it in Section 2.3(a).
(bo) Purchaser means The Royal Trust Company in its capacity as trustee of
Pure Trust, and its successors and assigns in such capacity, including any
successor trustee of Pure Trust.
(bp) Purchaser's Account means, in respect of each Transaction, the interest
bearing account maintained by the Purchaser at Royal Bank of Canada, Main
Branch, Toronto, Transit Number ▇▇▇▇▇ with the account number ▇▇▇-▇▇▇-▇, or
such other account which is designated by the Purchaser in writing by notice
to the Collector as the Purchaser's Account for the purposes hereof.
(bq) Purchaser's Indebtedness means any obligation or liability incurred by
the Purchaser in connection with the funding of its obligations herein.
(br) Pure Trust means the trust of that name established under the laws of the
Province of Ontario by a Declaration of Trust dated as of December 20, 1994,
as amended from time to time.
(bs) Records means all contracts, credit applications, credit analysis and
reports and "quality indicator score" records, books, records, reports and
other documents and information (including, to the extent obtainable by way of
existing software controlled by the Collector, hard copies of all data
maintained in databases of the Collector and on tapes, disks, punch cards and
other media under its control) maintained by the Collector or held or created
by the Collector with respect to the Secured Loans and the related Obligors,
including any agreement pursuant to which the Seller acquired its right, title
and interest in and to the Secured Loans under which it is not the original
obligee.
(bt) Related Document means any agreement, document, exhibit, notice or other
communication in favour of the Purchaser which has at any time been delivered
by the Seller to the Purchaser pursuant hereto and all other agreements and
documents required hereunder or thereunder.
(bu) Related Collateral means, with respect to any Purchased Asset, the
Collateral relating thereto.
(bv) Related Secured Loan Rights means any Secured Loan Rights relating to the
Purchased Assets.
(bw) Related Security in respect of a Secured Loan means any guarantee,
indemnity or other agreement or arrangement of whatsoever character (including
all Security Interests and all property subject thereto) from time to time
supporting or securing or purporting to support or secure payment or
performance of an Obligor's obligations in respect of such Secured Loan,
whether pursuant to such Secured Loan or otherwise, including any recourse
available to the Seller from the originating obligee pursuant to the
applicable assignment agreement.
(bx) Related Terms Schedule means each of those Terms Schedules which, by the
terms of the most recent thereof, are expressed to be related such that the
Secured Loans and Secured Loan Rights which are the subject of the Purchases
contemplated by such Terms Schedules are intended to form one pool of
Purchased Assets for the purposes hereof.
(by) Required APR means for each Transaction the percentage specified as such
in the Terms Schedule or the Related Terms Schedules, as the case may be.
(bz) Required Deferred Amount means, in respect of each Transaction, as
determined for each Settlement Date, the greater of
(1) the amount specified in the Terms Schedule or Related Terms
Schedules, as the case may be, as the "Required Deferred Amount
Floor", and
(2) the sum of
(A) the product of:
(i) the greater of
(I) 1% and
(II) 120% of the then current Portfolio Loss Ratio and
(ii) the Program Amount at such time, as adjusted in accordance
with Sections 2.5(f) and 2.6(a)(1) on such Settlement Date,
and
(B) the product of
(i) the greater of
(I) zero and
(II) the amount by which
A. the Required APR exceeds
B. the APR of the Purchased Assets as determined
with respect to the current Settlement Period
and
(ii) the amount referred to in Exhibit 1.1(bz)(2)(A)(ii) above
and
(iii) the remaining dollar weighted average contractual life
(in years) of the Purchased Assets (as calculated in the
manner set forth in Exhibit 1.1(bz)(2)(B)(iii)),
provided that at any time following the occurrence of a Lock-Up Event, the
Required Deferred Amount shall be equal to the Program Amount.
(ca) Required Reserve means, in respect of each Transaction, at any time, the
greater of
(1) the Reserve Rate multiplied by the Program Amount, and
(2) the amount specified in the Terms Schedule or the Related Terms
Schedules, as the case may be, as the "Required Reserve Floor".
(cb) Reserve Rate means, in respect of each Transaction, the percentage
specified as such in the Terms Schedule or Related Terms Schedules, as the
case may be.
(cc) Responsible Officer means, with respect to any corporation, the chairman
or vice-chairman of the board of directors, the chairman or vice-chairman of
the executive committee of the board of directors, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any senior trust officer, trust officer or assistant
trust officer, the controller and any assistant controller, or any other
officer or employee customarily preforming functions similar to those
performed by any of the above designated officers and also means, with respect
to the Purchaser and the Issuer Trustee and a particular corporate trust
matter, any other officer or employee to whom such matter is referred because
of his knowledge of and familiarity with the particular subject.
(cd) Secured Loans means retail instalment sale contracts and any other
agreements or combinations of agreements or portions thereof
(1) evidencing indebtedness of an Obligor, and
(2) creating a Security Interest over Collateral as security for such
indebtedness, other than agreements evidencing indebtedness of an
Obligor as lessee, as any such agreements may be amended, modified,
supplemented, restated or replaced from time to time.
(ce) Secured Loan Rights means, in respect of any Secured Loan, the following:
(1) all rights and benefits accruing to the Seller under such Secured
Loan, including all right, title and interest in and to the Loan
Receivables payable in respect of such Secured Loan;
(2) all right, title and interest of the Seller in and to the applicable
Collateral;
(3) all right, title and interest of the Seller in or to payments
(including both proceeds and premium refunds) under any insurance
policies maintained by the Obligor for the benefit of the Seller
pursuant to the terms of such Secured Loan, to the extent the same
indemnify for loss or damage to the applicable Collateral;
(4) all right, title and interest of the Seller in and to payments made
on account of any loss or damage to the applicable Collateral whether
under such Secured Loan or otherwise;
(5) all claims, demands, actions, damages and indemnities arising from
the manufacturers' or sellers' warranties relating to the applicable
Collateral;
(6) the benefit of all covenants with respect to the applicable
Collateral by the Obligor under such Secured Loan to the extent
allocable to the outstanding Loan Receivables under the terms of such
Secured Loan, use and insurance obligations;
(7) the right of the Seller to ask, demand, ▇▇▇ for, collect, receive and
enforce any and all amounts payable under such Secured Loan in
respect of the Related Collateral and to enforce all other covenants,
obligations, rights and remedies thereunder with respect thereto;
(8) all of the Seller's right, title and interest in, to and under all
Related Security;
(9) all Records pertaining to such Secured Loan; and
(10) all Proceeds of or relating to the foregoing.
(cf) Security Interest has the meaning given to it in the Personal Property
Security Act (Ontario).
(cg) Seller means Chrysler Credit Canada Ltd., its successors and permitted
assigns.
(ch) Seller Receivable means any amount owing by the Seller and Chrysler
Financial to the Purchaser by reason of a failure by the Seller and Chrysler
Financial to meet any of their obligations to make a payment to the Purchaser
hereunder, other than fees payable pursuant to Sections 4.1(a)(18) and
4.1(a)(19).
(ci) Seller Receivable Value means, with respect to each Seller Receivable,
the outstanding amount of such Seller Receivable from time to time.
(cj) Seller Reimbursable Amount has the meaning given to it in Section
2.5(b)(2).
(ck) Settlement Date means, with respect to any Settlement Period, the last
Business Day of the calendar month following such Settlement Period.
(cl) Settlement Period means, in respect of each Transaction,
(1) initially, the period from the initial Cut-Off Date to and including
the last day in the calendar month next following the calendar month
in which such Cut-Off Date occurs, and
(2) thereafter, each period from the day next following the last day of
the immediately preceding Settlement Period to and including the last
day in the calendar month next following the calendar month in which
such previous Settlement Period ended, ending with the calendar month
following that in which the Final Collection Date occurs.
(cm) Significant Event has the meaning given to it in Section 7.1.
(cn) Subsidiary means, with respect to any Person, a subsidiary of such Person
for the purposes of the Canada Business Corporations Act as amended from time
to time.
(co) Successor Collector has the meaning given to it in Section 3.2
(cp) Terms Schedule means the agreement evidencing a Purchase substantially in
the form of Exhibit 1.1(cp).
(cq) Transaction means an agreement constituted by one or more executed Terms
Schedules which is intended by reference to the Terms Schedule or the Related
Terms Schedules, as the case may be, to be treated by the parties as a
separate agreement with respect to the Purchased Assets which are subject
thereto and which Purchased Assets are intended to form one pool.
(cr) Trust Indenture means the trust indenture made December 22, 1994 between
the Purchaser and the Indenture Trustee, as the same may be amended, varied,
supplemented, renewed or replaced at any time or from time to time..
1.2 Headings. The table of contents and section headings used herein have been
inserted for convenience of reference only and in no way affect the
interpretation hereof. The table of contents does not form part of this
Agreement.
1.3 References to Sections and Exhibits. Unless otherwise provided, all
references herein to Sections or Exhibits are references to Sections and
Exhibits of or to this Agreement.
1.4 Number and Gender. Words importing the singular include the plural and
vice versa, and words importing gender include all genders.
1.5 References to Purchaser. For greater certainty, where any reference is
made in this Agreement to an act to be performed by or for or on behalf of the
Purchaser, such reference shall be construed and applied for all purposes as
if it referred to an act to be performed by the Issuer Trustee for and on
behalf of and in its capacity as trustee of Pure Trust and, where any
reference is made in this Agreement to an act to be performed by or for or on
behalf of the Issuer Trustee, such reference shall be construed and applied
for all purposes as if it referred to an act to be performed by or for or on
behalf of the Issuer Trustee in its capacity as trustee of the Purchaser.
1.6 Defined Terms Used in Trust Indenture, etc. For the purposes of the Trust
Indenture, any Liquidity Agreement and any Credit Support Agreement, this
Agreement and each Transaction is a "Purchase Agreement", and the following
terms used in any of the Trust Indenture, or such Liquidity Agreements or
Credit Support Agreements with reference to this Agreement and the Secured
Loans shall for such purposes have the following meanings:
(a) Buyer Payment Amount means, with respect to any Transaction, the Aggregate
Prepayment Amount for such Transaction.
(b) Buyer Proceeds for any Settlement Period means an amount equal to the
aggregate of the amounts transferred or paid to the Purchaser for the
Purchaser's account under Sections 2.4, 2.5(c), 2.5(d), 2.5(f), 2.5(g),
2.5(h), 2.5(i), 2.11(c), 2.13, 7.2, 9.1, 9.3, 10.10, 10.11 and 10.12.
(c) Collection or Collections with respect to any Transaction means
"Collections" as defined in Section 1.1(q) hereof, Net Proceeds and any
amounts payable to the Purchaser under Sections 2.9(a), 2.11(c), 9.1 and
10.11.
(d) Contract means Secured Loan.
(e) Distribution Date means Settlement Date.
(f) Distribution Statement means Portfolio Report.
(g) Hedge Agreement means Hedging Agreement.
(h) Holdback means Deferred Purchase Price.
(i) Loss Ratio means Portfolio Loss Ratio.
(j) Receivable means a Secured Loan together with the Related Secured Loan
Rights.
(k) Seller Distributable Amount for any Settlement Period means the aggregate
of the amounts transferred or paid to the Seller under Sections 2.4, 2.5(j),
2.6(a)(5) and 2.6(b).
1.7 Accounting Principles. Where the character or amount of any asset or
liability or item of revenue or expense is required to be determined, or any
consolidation or other accounting computation is required to be made for the
purpose of this Agreement, such determination or computation shall, to the
extent applicable and except as otherwise specified herein or as otherwise
agreed in writing by the parties, be made in accordance with generally
accepted accounting principles in Canada applied on a consistent basis.
Wherever in this Agreement reference is made to generally accepted accounting
principles, such reference shall be deemed to be to the generally accepted
accounting principles from time to time approved by the Canadian Institute of
Chartered Accountants, or any successor institute, applicable as at the date
on which such determination or computation is made or required to be made in
accordance with generally accepted accounting principles.
1.8 Currency. Unless otherwise indicated, all amounts stated herein are in
Canadian Dollars.
1.9 Computation of Time Periods. Unless otherwise provided herein or in any
Related Document, in the computation of a period of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to", "until" and "ending on" each mean "to but excluding". In addition,
if a Lock-Up Event occurs on a Settlement Date, the phrase "second Settlement
Date following the occurrence of a Lock-Up Event" in Sections 2.5(f)(4) and
2.6(a)(2) shall be interpreted to mean the first Settlement Date following the
Settlement Date on which such Lock-Up Event occurs.
1.10 List of Exhibits. The following Exhibits are attached to and form part of
this Agreement:
Exhibit 1.1(h) Form of Assignment
Exhibit 1.1(cp) Form of Terms Schedule
Exhibit 1.1(be) Sample Portfolio Report
Exhibit 1.1(az) Permitted Investments
Exhibit 1.1(bz)(2)(B)(iii) Dollar Weighted Average Contractual Life
calculation
Exhibit 4.1(a)(15)-1 Form of Opinion of Seller's Counsel
Exhibit 4.1(a)(15)-2 Form of Opinion of Chrysler Financial's General
Counsel
Exhibit 4.2(a)(5) Form of Opinion of Purchaser's Counsel
Exhibit 5.1(p) Historical Collection Results
SECTION 2 -- PURCHASE OF SECURED LOANS
2.1 Purchase Procedures - Terms Schedules. The Seller may sell and the
Purchaser may purchase Secured Loans and Related Secured Loan Rights from time
to time in accordance with this Agreement and the procedures set out in this
Section 2.1 and in Sections 2.2 and 2.3.
(a) General. From time to time, the parties may execute and deliver a Terms
Schedule which, upon such execution and delivery, shall evidence their binding
agreement with respect to the purchase and sale of the Secured Loans and
Related Secured Loan Rights described in such Terms Schedule and upon the
terms and conditions set forth therein. Except to the extent modified,
replaced, restated or supplemented in a Terms Schedule, the terms and
conditions of this Agreement are incorporated by reference into each Terms
Schedule mutatis mutandis and shall apply to the Purchase contemplated
thereby.
(b) Related Terms Schedules. If a Terms Schedule (each, a "new Terms
Schedule") is expressed to be a Related Terms Schedule related to one or more
Terms Schedules designated in the new Terms Schedule (each, a "designated
Related Terms Schedule"), the Secured Loans and Related Secured Loan Rights
which are the subject of the new Terms Schedule, together with the Secured
Loans and Related Secured Loan Rights which are the subject of each other
designated Related Terms Schedule, shall form a single pool of Purchased
Assets for all purposes hereof. Related Terms Schedules which are expressed to
be related to each other shall be considered as one Transaction for the
purposes hereof.
(c) Inconsistencies. In the event of any inconsistency between the provisions
herein contained and a Terms Schedule, the Terms Schedule shall prevail. In
the event of any inconsistency between one Related Terms Schedules and
another, the most recently executed Related Terms Schedule shall prevail.
2.2 Evidence and Effect of Sales. To evidence and effect the sale of the
Purchased Assets subject to a Purchase, the Seller shall deliver to the
Purchaser on the applicable Closing Date an Assignment referring to such
Purchased Assets. It is the intention of the parties that each such Assignment
shall constitute and effect an absolute and unconditional sale, assignment and
transfer of the Purchased Assets subject thereto and is not intended and shall
not be construed as a loan, secured financing or assignment by way of
security.
2.3 Purchase Price.
(a) Amount. The purchase price (the "Purchase Price") payable to the Seller by
the Purchaser in consideration of the sale of the Purchased Assets subject to
a Purchase shall be an amount equal to the sum of:
(1) the Prepayment Amount for such Purchase, plus
(2) (A) in the case of a Purchase pursuant to a Transaction constituted by
only one Terms Schedule, the Deferred Purchase Price relating to such
Purchase, or, (B) in the case of a Purchase pursuant to a Transaction
constituted by more than one Related Terms Schedules, the Applicable
Deferred Purchase Price,
as such sum may be adjusted from time to time in accordance with Section 2.4.
The purchase price in respect of each Transaction shall be an amount equal to
the sum of the Purchase Prices for all Purchases made pursuant to such
Transaction.
(b) Satisfaction of Purchase Price. The Purchaser shall satisfy the Purchase
Price for each Purchase as follows:
(1) subject to Section 2.3(c), as to an amount of the Purchase Price
equal to the applicable Prepayment Amount, by payment of each such
Prepayment Amount, less an amount equal to the applicable Cap Fee
and, in the case of the initial Purchase hereunder, the financial
advisory fee referred to in Section 4.1(a)(18) and the structuring
fee referred to in Section 4.1(a)(19), to the Seller by certified
cheque or wire transfer at each Time of Closing; and
(2) as to an amount of the Purchase Price equal to the Applicable
Deferred Purchase Price, by payment on each Settlement Date and on
the Final Collection Date of the amounts required to be paid under
Sections 2.6(a)(5) and 2.6(b).
(c) Cap Fee. The Seller agrees to pay the full amount of any fee or premium
payable by the Purchaser in respect of any Cap Agreement (each, a "Cap Fee"),
and for such purpose the Seller shall authorize and direct the Purchaser to
pay to Chrysler Financial on the relevant Closing Date an amount of the
Prepayment Amount otherwise payable to the Seller equal to the applicable Cap
Fee in respect of the applicable Purchase.
(d) Effect of Payment. Upon receipt of the applicable Prepayment Amount by the
Seller and the execution and delivery to the Purchaser by the Seller of the
related Assignment, all of the Seller's right, title and interest in and to
the Purchased Assets subject to the Purchase shall pass to the Purchaser. All
Collections and Net Proceeds in respect of such Purchased Assets received by
the Seller on or after the relevant Cut-Off Date shall be for the account of
the Purchaser and shall be held in trust by the Seller and remitted to the
Collector for distribution in accordance with Section 2.5.
(e) Taxes. Each Purchase Price shall be inclusive of all taxes (including,
without limitation, sales, use, goods and services, excise and personal
property taxes, but not including capital tax or taxes on the net income of
the Purchaser) payable or asserted in any jurisdiction in connection with the
transfer of the related Purchased Assets.
(f) Limitations on Recourse to Purchaser. The obligation of the Purchaser to
the Seller to pay the Deferred Purchase Price in respect of any Transaction
shall be limited to, performed, satisfied and paid only from Collections and
Net Proceeds relating to such Transaction which have been received by the
Purchaser or by its duly authorized agent (other than the Seller or a Person
appointed by the Seller) on its behalf (whether or not remitted to the
Purchaser by such agent), and no other resort or recourse shall be had, no
judgment issued and no execution or other process shall be levied against the
Purchaser or the Indenture Trustee or their respective assets with respect to
such obligation.
2.4 Rectifying Adjustments to Purchase Price. If at any time, the Purchaser,
the Financial Services Agent or the Seller determines in good faith that in
respect of any Purchase the actual aggregate Net Book Value on the Closing
Date of the Purchased Assets subject to such Purchase (the "actual Net Book
Value") was less or greater than the amount of the aggregate Net Book Value
used to calculate the portion of the Applicable Deferred Purchase Price
described in Section 1.1(aa)(1)(A) allocable to such Purchase (the "estimated
Net Book Value"), the following adjustments shall be made:
(a) If the actual Net Book Value is determined to be less than the
estimated Net Book Value, the Prepayment Amount shall be decreased by
the amount of such deficiency, and the Seller shall on the second
Business Day following the date of such determination pay such amount
to the Collector for the account of the Purchaser for deposit to any
account designated by the Purchaser (other than the Purchaser's
Account); and the Program Amount shall be reduced by such amount.
(b) If the actual Net Book Value is determined to be greater than the
estimated Net Book Value, the Deferred Purchase Price shall be
increased by the amount of such excess.
2.5 Liquidation Procedures. Except as otherwise provided in this Section 2.5,
from the initial Cut-Off Date in respect of each Transaction, and on each day
thereafter, the Collector shall hold, for the account of the Purchaser in
trust, the Collections and Net Proceeds received on each day.
(a) Monthly Remittances. So long as:
(1) the Seller is the Collector, and
(2) the rating assigned to the long term debt of Chrysler Financial by
▇▇▇▇▇'▇ is at least Baa3 (or its then equivalent),
(each of the foregoing, a "Monthly Remittance Condition"), then the Collector
may remit all Collections and Net Proceeds received by the Collector during a
Settlement Period (collectively, the "Monthly Receipts") to the accounts to
which such Monthly Receipts are required to be deposited hereunder on the
related Settlement Date. Pending such deposit, the Collector shall continue to
hold all Monthly Receipts in trust for the Purchaser, but so long as each
Monthly Remittance Condition continues to be satisfied, the Collector shall be
authorized to commingle such Monthly Receipts with its own funds and make use
of such Monthly Receipts at its own risk and for its own benefit as it sees
fit.
(b) Daily Remittances. If on any date a Monthly Remittance Condition ceases to
be satisfied, the following provisions shall apply.
(1) The Purchaser may, or, at the direction of the Purchaser, the
Collector shall establish a General Account in the name of and for
the benefit of the Purchaser in respect of each Transaction in
sufficient time to enable the Collector to comply with Section
2.5(b)(2).
(2) So long as any Monthly Remittance Condition continues not to be
satisfied, the Collector shall deposit to the General Account within
two Business Days of receipt (or such other period as may be agreed
upon by the Purchaser) an amount equal to the greater of (A) all
Collections and Net Proceeds received by the Collector ("Daily
Receipts") and (B) the amount by which such Daily Receipts exceed the
sum of the amounts described in Sections 2.5(d)(6), 2.5(d)(7) and
2.5(d)(8) (such sum, the "Seller Reimbursable Amount").
(3) The Collector is hereby authorized and directed to pay the Seller
Reimbursable Amount to the Seller to the extent available out of
Daily Receipts. If the amount otherwise required to be transferred to
the Purchaser's Account in any Settlement Period in accordance with
Section 2.5(d) is less than the Seller Reimbursable Amount for such
Settlement Period, then on the Settlement Date following such
Settlement Period the Collector may withdraw the amount of such
deficiency from the available balance in the General Account which is
not allocable to Pay Aheads and pay such amount to any account
designated by the Seller on account of the Seller Reimbursable
Amount.
(4) On the Final Collection Date, in addition to the releases
contemplated by Section 2.6(b), the Collector (if the Seller is the
Collector) shall transfer any remaining balance in the General
Account to the Purchaser's Account to be distributed in accordance
with Sections 2.5(f) and 2.5(h).
(c) Transfers of Purchase Discount to Purchaser.
(1) On the last day of each Settlement Period, the Collector is hereby
authorized and directed to transfer from the Collections and Net
Proceeds received in the Settlement Period then just completed
(whether from the General Account or otherwise) to any account
designated by the Purchaser (other than the Purchaser's Account) an
amount equal to the Purchase Discount for the Settlement Period
ending on such date and any portion of the Purchase Discount
calculated with respect to any prior Settlement Period not so
transferred on the last day of any prior Settlement Period in
accordance with the terms hereof.
(2) If the sum of the Collections and Net Proceeds received in the
Settlement Period then just completed is less than the Purchase
Discount calculated with respect to such Settlement Period, then an
amount equal to the lesser of:
(A) the amount of such shortfall; and
(B) the available balance in the Deferred Purchase Account,
shall be deducted from the Deferred Purchase Price as a refund to the
Purchaser, and for such purpose the Collector is authorized and
directed by the Seller to transfer such amount from the Deferred
Purchase Account to any account of the Purchaser designated by the
Purchaser other than the Purchaser's Account.
(d) Transfers of Other Amounts to Purchaser's Account. On each Settlement
Date, the Collector is hereby authorized and directed by the Purchaser to
cause to be transferred (whether from the General account or otherwise) to the
Purchaser's Account the amount, if any, by which the sum of:
(1) the amount of the Collections received with respect to the Loan
Receivables due and payable in connection with the Related Secured
Loan Rights in the immediately preceding Settlement Period
(including, without limitation, any deemed receipt of Collections
pursuant to Section 2.9) and any other Collections received with
respect to the immediately preceding Settlement Period or any prior
Settlement Period;
(2) any Net Proceeds received by the Collector relating to dispositions
of Related Collateral in the immediately preceding Settlement Period;
(3) any amounts payable to the Purchaser pursuant to Sections 2.4, 2.11,
2.13, 7.2, 9.1, 10.10, 10.11 and 10.12 since the last Settlement Date
or, with respect to the first Settlement Date, since the first
Closing Date; and
(4) any amount received by the Collector since the last Settlement Date
or, with respect to the first Settlement Date, since the first
Closing Date in payment of any other amount payable hereunder,
exceeds the sum of:
(5) the amount of the Purchase Discount transferred to any other account
of the Purchaser on the last day of the immediately preceding
Settlement Period pursuant to Section 2.5(c);
(6) any ▇▇▇▇▇▇▇▇ which relate to any Defaulted Loan which were previously
deposited by the Collector to the Purchaser's Account and remain
unpaid by the applicable Obligor (to the extent such unpaid amounts
did not arise in connection with a deemed Collection pursuant to
Section 2.9);
(7) any amount collected by the Collector with respect to a previously
unpaid amount billed to the applicable Obligor as part of any
▇▇▇▇▇▇▇▇ which the Seller has already remitted to the Purchaser's
Account in respect of a previous Settlement Period as permitted under
Section 2.5(e); and
(8) any amount in respect of any asserted set-off, reduction or
cancellation by the Obligor received by the Collector from the Seller
or deposited by the Seller to the Purchaser's Account in accordance
with Section 2.9 for which the Obligor has been found, during the
immediately preceding Settlement Period, to be liable.
For greater certainty, in no event shall the Collector transfer amounts into
the Purchaser's Account more than once in respect of the same item of
Collections or be permitted to deduct more than once amounts in respect of any
items of set-off referred to above.
(e) Advances by Seller. The Seller shall have the right (but not the
obligation) to deposit to the Purchaser's Account, on any Settlement Date, by
way of a loan to the Purchaser, the amount, if any by which:
(1) the aggregate of all ▇▇▇▇▇▇▇▇ for the immediately preceding
Settlement Period,
exceeds
(2) the sum of
(A) Collections received with respect to Loan Receivables owing in
connection with the Related Secured Loan Rights for the
immediately preceding Settlement Period, and
(B) Net Proceeds received in such immediately preceding Settlement
Period.
(f) Payments from Purchaser's Account. From the amounts available in the
Purchaser's Account (including any interest received on amounts held therein)
on each Settlement Date following the deposits thereto contemplated in Section
2.5(d), the Purchaser shall, in the following order of priority:
(1) to the extent that the Seller has deposited any applicable amount to
the Purchaser's Account by way of indemnification in accordance with
Sections 9.1, 9.3 and 10.10 ("Indemnity Payments"), pay the
appropriate amount of the Indemnity Payments to each third party
entitled to be compensated by the Purchaser in respect of any matter
in respect of which the Purchaser is entitled to be indemnified by an
Indemnity Payment, and transfer to any other account designated by
the Purchaser the amount of the Indemnity Payments not payable to
such third parties;
(2) transfer to any other account designated by the Purchaser the amount
of any costs, fees, expenses or damages or other amounts incurred or
required to be paid by the Purchaser as a result of any default by
the Seller or Chrysler Financial under any Hedging Agreement entered
into in respect of the Transaction;
(3) pay to the Collector the amount of any Collector Fee then payable;
(4) transfer to any other account designated by the Purchaser:
(A) on each Settlement Date before the second Settlement Date
following the occurrence of a Lock-Up Event (such second
Settlement Date to be determined in accordance with Section
1.9) (or on the Settlement Date on which the Lock-Up Event
occurred if the Lock-Up Event occurred as a result of the
inability of the Purchaser to make the transfers required by
Sections 2.5(c) or 2.5(f)(4)(A)) an amount equal to the
quotient obtained by dividing
(i) the amount by which
(I) the Net Book Value of the Purchased Assets (other
than Purchased Assets that are Defaulted Loans) on
the first day of the immediately preceding
Settlement Period
exceeds
(II) the Net Book Value of the Purchased Assets (other
than Purchased Assets that are Defaulted Loans) on
the last day of the immediately preceding
Settlement Period,
by
(ii) 1 plus the Reserve Rate, and
(B) on the second Settlement Date following the occurrence of a
Lock-Up Event (or on the Settlement Date on which the Lock-Up
Event occurred if the Lock-Up Event occurred as a result of the
inability of the Purchaser to make the transfers required by
Sections 2.5(c) or 2.5(f)(4)(A)) and on each Settlement Date
thereafter, an amount equal to the lesser of the Program Amount
and the remaining balance in the Purchaser's Account;
and, in each case, the Program Amount shall be reduced by the amount so
transferred.
(g) Shortfalls: Purchaser's Account. If the available balance in the
Purchaser's Account on any Settlement Date is less than the sum of the amounts
referred to in 2.5(f)(1) through 2.5(f)(4) above, the Seller hereby
irrevocably directs that, as a refund of a portion of the Deferred Purchase
Price, an amount equal to the least of:
(1) the amount of such shortfall;
(2) the available balance in the Deferred Purchase Account; and
(3) an amount equal to the sum of the amounts set forth in Sections
2.5(f)(1), 2.5(f)(2) and 2.5(f)(3) and the amount by which Losses
exceed Excess Spread in respect of such Settlement Period,
shall be transferred by the Purchaser from the Deferred Purchase Account to
the Purchaser's Account and shall be distributed in accordance with Section
2.5(f).
(h) Other Distributions from Purchaser's Account. Any amount remaining in the
Purchaser's Account after giving effect to Section 2.5(f) shall be applied by
the Purchaser on the applicable Settlement Date in the following priority:
(1) to pay all expenses incurred by the Collector on behalf of the
Purchaser related to the enforcement of the Purchaser's rights in
respect of the Purchased Assets and the Related Collateral or advice
with respect thereto;
(2) to pay the amount of any Adverse Claim upon the Related Collateral or
the interest of the Purchaser in the Related Secured Loan Rights
except where such Adverse Claim has been granted by the Purchaser;
and
(3) to transfer to any other account of the Purchaser an amount equal to
the expenses incurred by the Purchaser or by the Financial Services
Agent on behalf of the Purchaser.
(i) Shortfalls: Other Distributions. If the amount available in the
Purchaser's Account after giving effect to Section 2.5(g) is less than the sum
of the amounts referred to in Sections 2.5(h)(1)through 2.5(h)(3) above, the
Seller hereby irrevocably directs that, as a refund of a portion of the
Deferred Purchase Price, an amount equal to the lesser of:
(1) the amount of such shortfall; and
(2) the then available balance in the Deferred Purchase Account,
shall be transferred by the Purchaser from the Deferred Purchase Account to
the Purchaser's Account and shall be distributed in accordance with Section
2.5(h).
(j) Remaining Amounts. Any amounts remaining in the Purchaser's Account after
giving effect to Section 2.5(g) on each Settlement Date shall be paid to the
Seller by transfer to the Deferred Purchase Account and allocated in
accordance with Section 2.6.
(k) Separate Transactions. For greater certainty, the liquidation procedures
set forth in this Section 2.5 shall be complied with separately in respect of
each Transaction.
2.6 Deferred Purchase Account.
(a) Distributions. The Seller hereby irrevocably directs that on each
Settlement Date, the then available balance in the Deferred Purchase Account
(including interest received on amounts held therein), after making the
transfers and adjustments required by Sections 2.5(c), 2.5(g), 2.5(h), 2.5(i)
and 2.5(j), shall be held in trust by the Purchaser for the benefit of the
Seller, and shall be applied by the Purchaser in the following priority:
(1) at the Purchaser's option, either deposit to any account of the
Purchaser (which deposit shall be applied as a permanent reduction of
the Program Amount and as a refund of a portion of the Deferred
Purchase Price equal to the amount of such deposit) or invest in
Permitted Investments, in either case in an amount sufficient to make
the sum of the Net Book Value of the Purchased Assets (other than
Purchased Assets that are Defaulted Loans) and the principal amount
of, and accrued interest on, Permitted Investments, if any, as at
such date equal to the sum of the Program Amount and the Required
Reserve as at such date, provided that such Permitted Investments, if
any, shall be liquidated where not required with respect to any
subsequent Settlement Period and applied in the manner contemplated
by this Section 2.6;
(2) to ensure that there is held in the Deferred Purchase Account an
aggregate amount equal to the Required Deferred Amount, except that
on the second Settlement Date following the occurrence of a Lock-Up
Event as determined in accordance with Section 1.9 (or on the
Settlement Date on which the Lock-Up Event occurred, if the Lock-Up
Event resulted from the inability of the Purchaser to make the
transfers required by Section 2.5(c) and 2.5(f)(4)(A)), an amount
equal to the lesser of
(A) the amount set forth in Section 2.5(g)(3), less any amount paid
pursuant to Section 2.6(a)(1) on such Settlement Date, and
(B) the then available balance in the Deferred Purchase Account, if
any, and amounts otherwise transferable to the Deferred
Purchase Account in accordance with the terms hereof
shall be paid to the Purchaser by transfer to any other account of
the Purchaser as a refund of a portion of the Deferred Purchase Price
and in reduction of the Program Amount;
(3) to make any payment due from the Seller to the Purchaser pursuant
to Section 10.11 hereof;
(4) to make any payment otherwise due and unpaid from the Seller
hereunder; and
(5) to release to the Seller any amount then remaining in the Deferred
Purchase Account in satisfaction of a like amount of the Deferred
Purchase Price, after giving effect to the applications described in
2.6(a)(1) through 2.6(a)(4) above.
(b) Final Distributions. On the Final Collection Date, any balance remaining
in the Deferred Purchase Account shall be released by the Purchaser to the
Seller in satisfaction of a like amount of the Deferred Purchase Price.
(c) Transactions. For greater certainty, the foregoing provisions in this
Section 2.6 shall apply separately in respect of each Transaction.
2.7 Discount Rate and Program Fee.
(a) Discount Rate. Before 12:00 noon on the last day of each Settlement
Period, the Purchaser shall notify the Seller in writing of the Discount Rate
for each Transaction for the Settlement Period just ended. Such notified
Discount Rate shall be equal to the sum of:
(1) the weighted average cost of funds to the Purchaser (expressed as a
percentage) for Purchaser's Indebtedness then outstanding in respect
of the Transaction for such Settlement Period (which cost of funds,
for greater certainty, shall be determined in accordance with the
relevant Terms Schedule or the Related Terms Schedules, as the case
may be, shall take into account payments or receipts from Hedging
Agreements entered into in respect of the Transaction and may take
into account any Increased Costs incurred by the Purchaser in respect
of the current Settlement Period or any previous Settlement Period to
the extent not already reflected in the Discount Rate for such
previous Settlement Period); and
(2) the percentage specified in the relevant Terms Schedule or the
Related Terms Schedules, as the case may be, as the "Program Fee".
(b) Purchaser's Indebtedness. The Purchaser shall provide the Seller with such
information regarding the Purchaser's Indebtedness as the Seller may
reasonably request to the extent that such information is available, in the
form of hard copy or in a form that may be produced from available databases
with existing software of the Purchaser.
2.8 Clean Up Repurchase. If on any Settlement Date, after giving effect to the
liquidation procedures in respect of any Transaction described in Sections 2.5
and on such date, the Program Amount is less than or equal to 10% of the
Aggregate Prepayment Amount, the Seller shall have the right, at its option
exercisable upon five Business Days' prior notice to the Purchaser through the
Financial Services Agent, to repurchase the remaining Purchased Assets which
are the subject of such Transaction from the Purchaser for a price equal to
the Program Amount on such Settlement Date, payable to the Financial Services
Agent on such Settlement Date for the account of the Purchaser. Upon any such
repurchase, the Purchaser shall reassign to the Seller without recourse,
representation or warranty all of such remaining Purchased Assets, and the
Program Amount shall thereupon be reduced to zero. The Seller hereby agrees to
pay, and to indemnify and hold harmless the Financial Services Agent and the
Purchaser from all losses, costs and expenses incurred in connection with or
arising from such clean up repurchase. The Purchaser shall pay to the Seller
any income received by it in connection with or arising from such clean up
repurchase in excess of the costs and expenses described in the preceding
sentence.
2.9 Deemed Collections.
(a) Reductions, Cancellations and Extensions. If on any day from a Closing
Date to the relevant Final Collection Date, any Loan Receivable forming part
of any Related Secured Loan Right is either:
(1) reduced or cancelled as a result of any breach or amendment by the
Seller of the terms of the applicable Secured Loan;
(2) reduced or cancelled as a result of a set-off in respect of any claim
by the applicable Obligor against the Seller (whether such claim
arises out of the same or a related transaction or an unrelated
transaction); or
(3) extended beyond the original contractual maturity date of the
applicable Secured Loan contrary to either Section 6.2(b) and 6.2(c);
the Seller shall, for all purposes hereof, be conclusively deemed to have
received for the Purchaser's account on such day a Collection of such Loan
Receivable in the amount of such reduction or extension or the Principal
balance of the Loan Receivable in the case of a cancellation and shall, on or
before the second Settlement Date following the Settlement Period in which
such reduction, cancellation or extension occurred, remit such amount to the
Collector for deposit to the relevant Purchaser's Account.
(b) Repurchase on Breach of Warranty. If on any day before the Final
Collection Date, the representation and warranty with respect to any Purchased
Asset in Section 5.1(h)(1) as at the relevant Closing Date was not true, the
Seller shall pay to the Purchaser by deposit to the relevant Purchaser's
Account as a refund of a portion of the Deferred Purchase Price (or the
relevant Prepayment Amount to the extent that such deposit exceeds the
aggregate Deferred Purchase Price paid by the Purchaser as of such date) an
amount equal to the Net Book Value of the Purchased Asset on such day, and the
Purchaser shall assign and transfer to the Seller and the Seller shall accept
the assignment and transfer of such Purchased Asset. In consideration of such
assignment and transfer, the Purchaser shall waive any rights it may have
against the Seller or Chrysler Financial as a consequence of such
representation and warranty not being true.
(c) Effect of Deemed Collections. The parties acknowledge that the deemed
receipt of a Collection of all or part of a Loan Receivable relating to a
Related Secured Loan Right pursuant to this Section 2.9 shall not in any way
impair or otherwise affect any contractual or other right of the Seller or the
Purchaser as against the Obligor under the related Secured Loan or any other
Person (other than the Seller or the Purchaser), and no such Obligor or other
Person shall derive any benefit by virtue of such deemed receipt.
2.10 Reporting.
(a) Reports. On or before the tenth Business Day of each month, the Collector
shall, with the reasonable cooperation of the Seller if the Seller is not the
Collector, prepare and deliver to the Purchaser, separately in respect of each
Transaction:
(1) a Portfolio Report relating to the Loan Receivables in respect of the
Related Secured Loan Rights for the most recently completed
Settlement Period as of the close of business of the Collector on the
last Business Day of such Settlement Period; and
(2) if requested by the Financial Services Agent, a listing by Obligor of
the Net Book Value of the Purchased Assets as of the last Business
Day of such Settlement Period.
(b) Records. The Seller shall provide the Purchaser with such other Records
that are available in hard copy or that may be produced from available
databases with existing software of the Seller as the Purchaser may reasonably
request.
2.11 Payments and Computations.
(a) Remittances where Seller Not Collector. If Collections or Net Proceeds are
received by the Seller and the Seller is not the Collector, the Seller shall
remit them to the Collector on the second Business Day following the date on
which such Collections or Net Proceeds are received. Where such amounts are
received in the form of a cheque, the cheque shall be endorsed in favour of
the Collector and remitted to the Collector directly without prior deposit to
any account of the Seller. If any amounts which are not Collections or Net
Proceeds are received by the Collector and the Collector is not the Seller,
the Collector shall remit such amounts to the Seller on the second Business
Day following the date on which such amounts are received.
(b) Payments. All amounts to be paid or deposited by the Seller or the
Collector to the Purchaser will be paid or deposited no later than 11:00 a.m.
(Toronto time) on the day when due in accordance with the terms hereof in same
day funds to the applicable account as required hereunder.
(c) Interest on Overdue Amounts. The Seller shall pay to the Purchaser
interest (both before and after default and judgment, with interest on overdue
interest at the same rate) on all amounts not paid or deposited when due
hereunder (whether owing by the Seller on its own behalf or in its capacity as
Collector) at a rate equal to the Prime Rate plus 1% per annum, payable on
demand. Such interest shall be paid by the Seller to the Collector for deposit
to the relevant Purchaser's Account on the next Settlement Date. The yearly
rate of interest for any day to which the Prime Rate is applicable is the rate
so determined multiplied by the actual number of days in that year and divided
by 365 or 366, as the case may be. Interest rate charges will be effective for
interest computation periods from the date on which the Prime Rate changes and
the Seller and the Purchaser will be bound by any and all changes of the Prime
Rate with or without notice thereof.
(d) No Deduction. The Seller shall, on its own behalf or in its capacity as
Collector, make all payments required to be made by it hereunder without
deduction (other than for applicable taxes or as otherwise authorized
hereunder), regardless of any defence or counterclaim (whether based on any
law, rule or policy now or hereafter issued or enacted by an government
authority or regulatory body), except as contemplated hereunder.
2.12 Further Action to Protect Purchased Assets. The Seller shall, from time
to time at its expense, promptly execute and deliver all instruments and
documents and take all action that the Purchaser may reasonably request in
order to perfect, protect or more fully evidence the Purchaser's ownership of
the Purchased Assets or to enable the Purchaser to exercise or enforce any of
its rights hereunder or thereunder.
2.13 Ineligible Secured Loans. If, on any day after a Closing Date, the
Purchaser, the Financial Services Agent or the Seller determines that, on the
relevant Cut-Off Date, any Secured Loan forming part of the Purchased Assets
was not an Eligible Secured Loan (an "Ineligible Secured Loan"), the
Purchaser, the Financial Services Agent or the Seller, as the case may be,
shall forthwith notify the other parties of such ineligibility and on the last
day of the Settlement Period following the Settlement Period in which such
notice is received or, where such determination is made following the
occurrence of a Significant Event or Lock-Up Event, on the second Business Day
following the date of receipt of such notice, the Seller shall pay to the
Collector for deposit to the relevant Purchaser's Account as a refund of a
portion of the Deferred Purchase Price an amount equal to the then Net Book
Value of such Ineligible Secured Loan such that the Purchaser shall be kept
whole and not incur any expense or loss as a result of the purchase of such
Ineligible Secured Loan. The Purchaser shall accept such payment as a refund
of a portion of the Deferred Purchase Price applicable to such Ineligible
Secured Loan. Upon such payment being made, the Purchaser shall assign and
transfer to the Seller and the Seller shall accept the assignment and transfer
of such Purchased Asset. In consideration of such payment, the Purchaser shall
waive any rights it may have against the Seller or Chrysler Financial as a
consequence of such Secured Loan being an Ineligible Secured Loan.
2.14 Retransfer of Purchased Assets. Upon any retransfer by the Purchaser to
the Seller of any Purchased Asset in accordance with Sections 2.8, 2.9(b) or
2.13, the Seller and the Purchaser shall execute and deliver such further
agreements, instruments or other assurances as may be reasonably necessary or
desirable to evidence and give full effect to such retransfers.
2.15 Permitted Investments. Subject to Section 2.6(a)(1), the balance
available in each Deferred Purchase Account shall be invested in Permitted
Investments by the Purchaser. If any General Account shall be established, the
balance available in such General Account shall be invested in such Permitted
Investments by the Collector as may be directed by the Purchaser. The
Purchaser shall maintain and direct the Collector to maintain a portion of the
aggregate balances in such accounts equal to the portion of the Purchaser's
Indebtedness due and payable on the next following Settlement Date in
Permitted Investments which mature no later than such Settlement Date. The
Purchaser shall, upon the request of the Seller, advise the Seller of the
Permitted Investments in which such balances are invested.
2.16 Allocation of Collections. Any amounts received by the Collector from an
Obligor not specifically allocated by the Obligor to any particular amount
owing by the Obligor shall be applied pro rata to Loan Receivables and other
amounts owing by the Obligor whether or not such Loan Receivables and other
amounts are included in the Related Secured Loan Rights applicable to the
Purchased Assets, provided that, if the Obligor shall specifically allocate
any subsequent amounts to Loan Receivables or other amounts already paid
pursuant to this Section 2.16 or if for any other reason the Collector
determines that amounts received should have been allocated otherwise than in
accordance with the foregoing, the Collector shall make such adjustments as
may be necessary or desirable to ensure that payments are not made more than
once for the same Loan Receivable.
SECTION 3 -- COLLECTION AND SERVICING OF SECURED LOANS
3.1 Designation of the Collector. The Related Secured Loan Rights shall be
administered, and the related Loan Receivables collected, by the Collector in
trust for the Purchaser in accordance with this Section 3. In respect of each
Transaction, the Seller is hereby designated as, and hereby agrees to perform
the duties and obligations of, the Collector pursuant to the terms hereof and
the Seller shall continue to perform the duties and obligations of the
Collector, and may not resign from such position, unless and until the
Purchaser designates a new Collector in accordance with Section 3.2.
3.2 Replacement of Seller as Collector. The Purchaser may, upon notice to the
Seller at any time after the occurrence of a Significant Event in respect of
one or more Transactions which Significant Event is continuing, terminate
immediately the role of the Seller with respect to the administration,
servicing and collection of the Purchased Assets, and thereupon the Purchaser
may appoint as the Collector in respect of such Transactions any Person with a
permanent establishment in Canada to succeed the Seller or any successor
Collector (each such Person, a "Successor Collector"), on the condition in
each case that any such Successor Collector shall agree to perform the duties
and obligations of the Collector pursuant to the terms hereof and agree to be
bound by the terms of this Agreement. Upon such termination and appointment,
the Seller shall comply with and the Purchaser shall have the benefit of
Section 7.2.
3.3 Appointment of Subcollector. The Collector, with the Purchaser's prior
written consent, may subcontract with any other Person for the administration
of the Related Secured Loan Rights and the collecting of the related Loan
Receivables; provided, however, that the Collector will remain liable for the
performance of the duties and obligations so subcontracted and all other
duties and obligations of the Collector pursuant to the terms hereof. The fees
and expenses of the subcollector shall be as agreed between the Collector and
its subcollector from time to time and the Purchaser shall not have any
responsibility therefor.
3.4 Duties of the Collector, etc.
(a) Duties and Powers. The Collector shall, unless the Purchaser directs
otherwise at any time when the Collector is not the Seller, take or cause to
be taken all such actions as may be reasonably necessary or advisable from
time to time to administer, service and collect the Loan Receivables forming
part of the Related Secured Loan Rights and dispose of the Related Collateral
upon termination of or default under the applicable Secured Loans, including
the repossession and sale of the Related Collateral in accordance with the
terms of the relevant Secured Loans, the Credit and Collection Policy and
applicable law. For such purpose, the Collector is authorized on behalf of the
Purchaser in respect of each Transaction to enforce the Purchaser's rights and
interests in and under the Related Secured Loan Rights, and the Purchaser
hereby grants to the Collector a power of attorney to commence and prosecute
legal action and other available remedies against the relevant Obligor to
enforce the Related Secured Loan Rights, such power to be revoked in respect
of any Transaction only upon replacement of the Collector in accordance with
the terms hereof. Notwithstanding the foregoing, the Collector (if the
Collector is not the Seller) shall obtain the prior written consent of the
Purchaser before commencing any legal action to enforce any Related Secured
Loan Rights and, where the Seller is not the Collector, such legal action
shall be commenced and maintained in the name of the Purchaser.
(b) Copies of Documents. Forthwith upon the Purchaser's request, the Seller,
if not the Collector in respect of any Transaction, shall deliver complete
copies of all documents evidencing and Records listing Purchased Assets which
are the subject of each Transaction (including any amendments thereto) to the
Purchaser, or as the Purchaser shall direct, for the Purchaser's sole use in
facilitating the collection of the applicable Loan Receivables.
(c) Operating Procedures. The Collector shall maintain and implement prudent
and reasonable administrative and operating procedures (including an ability
to recreate records evidencing the Related Secured Loan Rights) and keep and
maintain all books, records, documents and other information reasonably
necessary or advisable for the collection of all Loan Receivables forming part
of the Related Secured Loan Rights (including records adequate to permit all
collections of and reductions or adjustments to such Loan Receivables) all in
accordance with the Credit and Collection Policy or a modification hereof
adopted pursuant to Section 3.4(a) in respect of a Transaction where the
Collector is not the Seller.
(d) Software. To the extent the Records consist in whole or in part of
computer programs which are leased by or licensed to the Seller, the Seller
shall, upon the demand of the Purchaser, use its best efforts to arrange for
the license or sublicense of such programs to the Purchaser to the extent
permitted by the terms of such lease or license for the sole use of the
Purchaser or its agent in facilitating the administration, servicing and
collection of the applicable Loan Receivables and provide to the Purchaser or
any Successor Collector access to all computer and related equipment and, in
connection therewith, permit any Successor Collector to use all operating
systems and other programs which are desirable or useful in order to enable
the Successor Collector to administer, service and collect the Purchased
Assets. To the extent that the terms of any lease or license prohibit or
restrict such use, the Seller shall, upon the demand of the Purchaser,
co-operate with and provide the Purchaser with all such access, information,
data and assistance, at the Seller's expense, as may be reasonably necessary
to enable the Purchase or its agent to administer, service and collect the
applicable Loan Receivables notwithstanding such prohibition or restriction.
(e) Default Interest. The Collector shall, with respect to any amount not paid
by the Collector when required to be paid hereunder, pay interest to the
Purchaser (before and after default and judgment, with interest on overdue
interest at the same rate) at a rate per annum, calculated daily, equal to the
Prime Rate plus 1%, payable on demand, provided that nothing in this Section
3.4(e) shall be construed to require the payment of interest on amounts for
which interest is paid pursuant to Section 2.11(c) above. Such interest will
be for the account of the Purchaser and shall be paid by the Collector free
and clear of, and without deduction for, any taxes of any kind whatsoever to
the relevant Purchaser's Account to be applied in accordance with Sections 2.5
and 2.6 on the next Settlement Date.
(f) Termination. The appointment of the Collector for the time being as agent
of the Purchaser in respect of each Transaction for the purposes set out
herein shall terminate upon the earlier of the appointment of a Successor
Collector under Section 3.2 and the relevant Final Collection Date.
(g) Marking of Records. The Collector shall ▇▇▇▇ its computer records in an
appropriate manner to clearly designate the Secured Loans forming part of the
Purchased Assets to be the property of the Purchaser.
(h) Termination of Secured Loans. For so long as the Seller is the Collector
in respect of any Transaction, the Seller may as agent for the Purchaser agree
with any Obligor under Purchased Assets which are the subject of such
Transaction to cancel or terminate the applicable Secured Loan before its
maturity, provided that the consideration payable by the Obligor to the
Collector as agent for the Purchaser with respect to such agreement to cancel
or terminate shall not be less than the then applicable Net Book Value of such
Purchased Asset and provided that the amount of such consideration is
deposited to the Purchaser's account as a deemed Collection in accordance with
Section 2.9(a).
3.5 Collector Fee. If the Collector is not the Seller in respect of any
Transaction, the Collector shall be paid, as a fee in respect of that
Transaction (the "Collector Fee"), such commercially reasonable amount as may
be negotiated between the Purchaser and such Collector from time to time. Such
fee shall be payable in arrears on each Settlement Date.
SECTION 4 -- CONDITIONS PRECEDENT
4.1 Purchaser's Conditions Precedent to Each Purchase.
(a) Initial Purchase. The obligation of the Purchaser to complete the initial
Purchase under this Agreement is subject to satisfaction of the conditions
precedent that on or before the initial Closing Date the Purchaser shall have
received each of the following, in form and substance satisfactory to the
Purchaser or its counsel, each of which conditions precedent is for the sole
benefit of the Purchaser and may be waived by it at any time:
(1) executed copies of this Agreement;
(2) executed copies of the Terms Schedule in respect of such Purchase
and the other Related Documents;
(3) certificates of status, good standing or compliance, as appropriate,
with respect to the Seller and Chrysler Financial issued by their
respective jurisdictions of incorporation and by each province in
which the Seller carries on business and in which the Secured Loans
forming part of the Purchased Assets were originated;
(4) an Officer's Certificate from each of the Seller and Chrysler
Financial relating to their respective constating documents and
certified copies of all necessary corporate authorizations of the
Seller and Chrysler Financial to authorize the execution, delivery
and performance of this Agreement and the Terms Schedule relating to
such initial Purchase, of the Related Documents to which it is a
party and of the transactions contemplated hereby and thereby;
(5) an Officer's Certificate of each of the Seller and Chrysler Financial
as to the names and true signatures of the officers authorized to
sign this Agreement and the Related Documents on its behalf, on which
Officer's Certificates the Purchaser shall be entitled to
conclusively rely in respect of all Purchases until such time as the
Purchaser receives from the Seller or Chrysler Financial, as the case
may be, a replacement Officer's Certificate meeting the requirements
of this Section 4.1(a)(5);
(6) an Officer's Certificate of the Seller to the effect that
(A) the representations and warranties set out in Section 5.1 are
true and correct, and
(B) no event has occurred and is continuing, or would result from
the Purchase, which constitutes a Significant Event;
(7) an Officer's Certificate of Chrysler Financial to the effect that
(A) the representations and warranties set out in Section 5.2 are
true and correct, and
(B) no event has occurred and is continuing, or would result from
the Purchase, which constitutes a Significant Event;
(8) an Officer's Certificate of the Seller addressed to the Purchaser and
to counsel to the Purchaser as to certain factual matters in support
of the opinion referred to in Section 4.1(a)(16) and as to the forms
of retail instalment sale contract evidencing Secured Loans now in
use by Dealers in Canada;
(9) executed copies of the relevant Assignment;
(10) copies of properly completed and duly registered financing statements
or financing change statements, or verification statements evidencing
such registration, assignments or other public filings with respect
to the Purchaser's ownership interest in the Purchased Assets, with
registration particulars stamped thereon, dated before the Closing
Date, naming the Seller, as seller, assignor, "debtor" (as such term
is used under the applicable Personal Property Security Act to
describe the assignor under an absolute assignment of an account or
book debt) or transferor, as appropriate, and the Purchaser, as
purchaser, assignee, "secured party" (as such term is used under the
applicable Personal Property Security Act to describe the assignee
under an absolute assignment of an account or book debt) or
transferee, as appropriate, and any other similar instruments or
documents as may be necessary or advisable, in the reasonable opinion
of the Purchaser or its counsel, to perfect the sale to the Purchaser
of the Purchaser's ownership interest in the Purchased Assets and to
record or protect the Purchaser's ownership interest in the Purchased
Assets;
(11) an Advance Ruling Certificate under the Competition Act (Canada) in
respect of such Purchase contemplated herein, if required;
(12) an executed copy of the applicable Cap Agreement, including the
confirmation relating thereto, in form and substance satisfactory to
the Purchaser and its counsel, relating to the Purchase;
(13) an Officer's Certificate of the Financial Services Agent confirming
that one or more Liquidity Agreements and one or more Credit Support
Agreements, each on terms and conditions and in form and substance
satisfactory to the Purchaser in its sole discretion, are in full
force and effect;
(14) an Officer's Certificate of the Financial Services Agent confirming
that no event has occurred and is continuing which, under the terms
of the Financial Services Agreement or the Trust Indenture, would
prevent the Purchaser from issuing additional Notes and that all
conditions precedent under the Trust Indenture to the issuance of
Notes in respect of the Purchase have been satisfied;
(15) favourable opinions of counsel for the Seller and the General Counsel
for Chrysler Financial in substantially the form of Exhibits
4.1(a)(15)-A and 4.1(a)(15)-B respectively;
(16) the favourable opinion of counsel to the Purchaser as to whether the
provisions of this Agreement and each Assignment contemplated thereby
are sufficient to effect and, in respect of the initial Assignment,
do effect, as between the Seller and the Purchaser, a valid sale to
the Purchaser of all of the Seller's right, title and interest in, to
and under the Secured Loans and Secured Loan Rights specified in such
Assignment and as to such other matters as the Purchaser and its
counsel may reasonably consider necessary or appropriate;
(17) such other approvals, opinions or documents as the Purchaser may
reasonably request, including, without limitation, opinions of local
counsel as to the registration or filing of the applicable Assignment
or notice thereof and such other matters as the Purchaser may
reasonably require;
(18) a financial advisory fee in the amount set forth in the Terms
Schedule, inclusive of applicable goods and services taxes, payable
by the Seller to the Financial Services Agent in connection with the
Purchase; and
(19) a structuring fee in the amount set forth in the Terms Schedule
payable by the Seller to the Financial Services Agent in connection
with the Purchase.
(b) Subsequent Purchases. The obligation of the Purchaser to complete any
Purchase subsequent to the initial Purchase under this Agreement is subject to
satisfaction of the conditions precedent that on or before the relevant
Closing Date, the Purchaser shall have received each of the following, in form
and substance satisfactory to the Purchaser or its counsel, each of which
conditions precedent is for the sole benefit of the Purchaser and may be
waived by it at any time:
(1) executed copies of the Terms Schedule in respect of such Purchase
and the other Related Documents;
(2) certificates of status, good standing or compliance, as appropriate,
with respect to the Seller and Chrysler Financial issued by their
respective jurisdictions of incorporation and by each province in
which the Seller carries on business and in which the Secured Loans
forming part of the Purchased Assets were originated;
(3) an Officer's Certificate from each of the Seller and Chrysler
Financial disclosing any changes in their respective constating
documents since the latest certificate delivered pursuant to Section
4.1(a)(4) or this Section 4.1(b)(3), and certified copies of all
necessary corporate authorizations of the Seller and Chrysler
Financial to authorize the execution, delivery and performance of the
Terms Schedule relating to such Purchase of the Related Documents to
which it is a party and of the transactions contemplated hereby and
thereby; and
(4) the documents referred to in Sections 4.1(a)(6), 4.1(a)(7), 4.1(a)(9)
and 4.1(a)(10) (to the extent required), and 4.1(a)(11), 4.1(a)(12),
4.1(a)(13), 4.1(a)(14), 4.1(a)(15) and 4.1(a)(17), each with respect
to such Purchase.
4.2 Seller's Conditions Precedent.
(a) Initial Purchase. The obligation of the Seller to complete the initial
Purchase under this Agreement is subject to satisfaction of the conditions
precedent that on or before the initial Closing Date the Seller shall have
received each of the following, in form and substance satisfactory to the
Seller or its counsel, each of which conditions precedent is for the sole
benefit of the Seller and may be waived by it at any time:
(1) payment of the Prepayment Amount;
(2) executed copies of this Agreement and other Related Documents;
(3) an Officer's Certificate of the Purchaser to the effect that the
representations and warranties set out in Section 5.3 hereof are true
and correct;
(4) an Officer's Certificate of the Purchaser as to the names and true
signatures of the officers or other Persons authorized to sign this
Agreement and the Related Documents on its behalf; and
(5) the favourable opinion of counsel to the Purchaser in substantially
the form of Exhibit 4.2(a)(5) as to the valid formation and
subsistence of the Purchaser as a trust under the laws of Ontario and
the due execution and binding effect of this Agreement and all
Related Documents to which the Purchaser is a party.
(b) Subsequent Purchases. The obligation of the Seller to complete any
Purchase subsequent to the initial Purchase under this Agreement is subject to
satisfaction of the conditions precedent that on or before the initial Closing
Date the Seller shall have received each of the following, in form and
substance satisfactory to the Seller or its counsel, which conditions
precedent are for the sole benefit of the Seller and may be waived by it at
any time:
(1) payment of the Prepayment Amount;
(2) executed copies of the Terms Schedule in respect of such Purchase
and the other Related Documents; and
(3) the documents referred to in Section 4.2(a)(3) and 4.2(a)(5) with
respect to such Purchase.
SECTION 5 -- REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of the Seller. The Seller hereby represents
and warrants to the Purchaser with respect to each Purchase on a continuous
basis (unless otherwise indicated in the applicable representation and
warranty to be made as at a particular point in time) and acknowledges that in
reliance on such representations and warranties the Purchaser has entered into
this Agreement and will consider making Purchases from time to time, that as
at each Closing Date
(a) the Seller is a corporation validly existing under the laws of its
jurisdiction of incorporation and is duly qualified to do business as
an extra provincial corporation in every jurisdiction where failure
to be so qualified would adversely affect the collectability of a
material portion of the Related Secured Loan Rights;
(b) as at the relevant Closing Date, the execution, delivery and
performance by the Seller of this Agreement, the Related Documents to
be delivered by the Seller hereunder and the transactions
contemplated hereby and thereby are within the corporate powers of
the Seller, have been duly authorized by all necessary corporate
action, and do not contravene:
(1) its constating documents or by laws;
(2) any law, rule or regulation applicable to it;
(3) any indenture, loan or credit agreement, lease under which the
Seller is the lessee, mortgage, security agreement, bond, note
or other agreement or instrument binding upon it or affecting
its property; or
(4) any order, writ, judgment, award, injunction or decree binding
on the Seller or affecting its property;
and will not result in or require the creation of any Adverse Claim
upon or with respect to any of its properties other than as
contemplated by this Agreement;
(c) as at the relevant Closing Date, this Agreement and all Related
Documents delivered by the Seller hereunder have been duly executed
and delivered by or on behalf of the Seller;
(d) as at the relevant Closing Date or on the date of delivery of the
applicable Related Documents, no authorization, approval or other
action by and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution, delivery and
performance by the Seller of this Agreement or the Related Documents
to which it is a party, except for
(1) such notices or filings that are required to record or perfect
the transfer constituted by the Purchase, and
(2) such notices, filings or rulings required pursuant to the
Competition Act (Canada);
(e) this Agreement and the Related Documents to which the Seller is a
party are its legal, valid and binding obligations enforceable
against it in accordance with their terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in
equity or at law);
(f) as at the relevant Closing Date, there are no actions, suits or
proceedings of which the Seller has not advised the Purchaser in
writing against or affecting the Seller or any of its property before
any court, governmental body or arbitrator, including, without
limitation, any such actions arising under the Employment Retirement
Income Security Act of 1974 (United States of America) (nor to its
knowledge, any such actions pending or threatened), which may
materially adversely affect the Seller's ability to perform its
obligations hereunder or under the Related Documents to which it is a
party and it is not in default with respect to any order of any
court, governmental body or arbitrator where the consequences of such
default would materially adversely affect its ability to perform its
obligations hereunder or thereunder;
(g) as at the relevant Closing Date, no material default has occurred and
is outstanding under any agreement or instrument referred to in
Section 5.1(b)(3) which default would materially and adversely affect
the collectability of any Loan Receivables forming part of the
Related Secured Loan Rights, the enforceability of any Related
Secured Loan Rights or its ability to perform its obligations
hereunder or under the Related Documents to which it is a party;
(h) as at the relevant Closing Date,
(1) the Seller holds title to the Secured Loans forming part of the
Purchased Assets (other than Secured Loans paid in full from
the relevant Cut-Off Date to and including the relevant Closing
Date) free and clear of any Adverse Claim, and upon the
Purchase of the Purchased Assets hereunder, the Purchaser will
hold title thereto free and clear of any Adverse Claim, other
than any Adverse Claim held by any person claiming through or
under the Purchaser;
(2) each Secured Loan forming part of the Purchased Assets (other
than Secured Loans paid in full from the relevant Cut-Off Date
to and including the relevant Closing Date) is in full force
and effect, unamended, except for any amendments made in
accordance with the Credit and Collection Policy, and shall
constitute a legal, valid and binding obligation of the parties
thereto enforceable in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium
or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of
general application and in particular to the application of
Section 65.1(5) of the Bankruptcy and Insolvency Act (Canada),
and the Seller has not given any consents, approvals or waivers
under or in respect of any such Purchased Assets, except in
accordance with the Credit and Collection Policy;
(3) each Secured Loan forming part of the Purchased Assets
constitutes chattel paper as defined in the Personal Property
Security Act (Ontario);
(4) no amount receivable under any Purchased Asset is an amount
required to be collected and remitted by any Dealer or the
Seller in respect of or on account of goods and services tax
under Part IX of the Excise Tax Act (Canada) or provincial
sales tax exigible on the sale to each Obligor of each vehicle
comprising Collateral under Secured Loans forming part of the
Purchased Assets (collectively, "Transfer Taxes"); all Transfer
Taxes were payable to the relevant Dealer by the relevant
Obligor at the time of such sale; and the Purchaser will have
no liability for collecting or remitting any such Transfer
Taxes;
(i) as at the relevant Closing Date, the Seller's chief executive office
is located at ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇;
(j) as at the relevant Closing Date, the Seller has places of business
in the Province of Quebec;
(k) no Portfolio Report, exhibit, financial statement, Record or report
furnished by the Collector hereunder or in connection herewith is or
will be inaccurate in any material respect as of the date it is or
will be dated or omits or will omit to state a material fact or any
fact necessary to make the statements contained therein not
materially misleading;
(l) the Purchased Assets have been selected from the Seller's portfolio
of retail motor vehicle receivables, subject only to the requirement
that the related Secured Loan be an Eligible Secured Loan, and no
selection procedures believed to be adverse to the Purchaser were
applied in selecting the Purchased Assets from such portfolio; and
all information regarding each such Secured Loan and Related
Collateral made available to the Purchaser is true and correct in all
material respects;
(m) as of the relevant Cut-Off Date, the names listed on the Appendix to
the Terms Schedule are the names for notice for each Obligor under
the Purchased Assets recorded in the Records of the Seller;
(n) the aggregate Net Book Value of all Purchased Assets which are the
subject of the Transaction under which any one Person is the
applicable Obligor does not exceed the Concentration Limit;
(o) as of the relevant Cut-Off Date, the aggregate Net Book Value of
Purchased Assets secured by Related Collateral that are financed at
the Seller's used vehicle rates does not exceed the percentage set
forth in the relevant Terms Schedule as the "Used Vehicle Rate
Percentage" of the aggregate Net Book Value of the Purchased Assets,
which percentage in any event will not exceed 30%;
(p) the historical collection results of the Seller for the five years
ended December 31, 1994 for retail automotive receivables owned or
serviced by the Seller are as set out in Exhibit 5.1(p);
(q) the Seller does not maintain any policies of insurance with respect
to loss of, damage to or third party liability with respect to
Related Collateral; and
(r) the Seller is not a non resident as defined under the Income Tax Act
(Canada).
5.2 Representations and Warranties of Chrysler Financial. Chrysler Financial
hereby represents and warrants to the Purchaser with respect to each Purchase
on a continuous basis (unless otherwise indicated in the applicable
representation and warranty to be made as at a particular point in time) as
follows:
(a) it is a corporation validly existing under the laws of its
jurisdiction of incorporation;
(b) as at the relevant Closing Date, the execution, delivery and
performance by it of this Agreement and the Related Documents to be
delivered by it hereunder are within its corporate powers, have been
duly authorized by all necessary corporate action and do not
contravene:
(1) its articles of incorporation or by laws;
(2) any law, rule or regulation applicable to it;
(3) any indenture, loan or credit agreement, lease, mortgage,
security agreement, bond, note or other agreement or instrument
binding upon it or affecting its property; or
(4) any order, writ, judgment, award, injunction or decree binding
on it or affecting its property;
(c) as at the relevant Closing Date, this Agreement and all Related
Documents delivered by it hereunder have been duly executed and
delivered by or on behalf of it;
(d) as at the relevant Closing Date or on the date of delivery of the
applicable Related Documents to which it is a party, no
authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by it of
this Agreement or the Related Documents to which it is a party;
(e) this Agreement is its legal, valid and binding obligation enforceable
against it in accordance with its terms subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in
equity or at law);
(f) as at the relevant Closing Date, no material default has occurred and
is outstanding under any agreement or instrument referred to in
Section 5.2(b)(3) which default would materially and adversely affect
its ability to perform its obligations hereunder or under the Related
Documents to which it is a party;
(g) as at the relevant Closing Date, there are no actions, suits or
proceedings of which Chrysler Financial has not advised the Purchaser
in writing against or affecting it or any of Chrysler Financial's
property before any court, governmental body or arbitrator including,
without limitation, any such actions arising under the Employment
Retirement Income Security Act of 1974 (United States of America)
(nor to its knowledge, any such action pending or threatened) which
may materially adversely affect its ability to perform its
obligations hereunder or under the Related Documents to which it is a
party and it is not in default with respect to any order of any
court, governmental body or arbitrator where the consequences of such
default would materially adversely affect its ability to perform its
obligations hereunder or thereunder; and
(h) the Seller is a Subsidiary of Chrysler Financial.
5.3 Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Seller with respect to each Purchase on a
continuous basis (unless otherwise indicated in the applicable representation
to be made as at a particular point in time) as follows:
(a) it is a trust validly existing under the laws of the Province of
Ontario;
(b) as at the relevant Closing Date, the execution, delivery and
performance by it of this Agreement, the Related Documents to be
delivered by it hereunder and the transactions contemplated hereby
and thereby are within its purposes and powers, have been authorized
by all necessary action of its trustee and do not contravene:
(1) its declaration of trust;
(2) any law, rule or regulation applicable to it in any province
or territory of Canada;
(3) any indenture, loan or credit agreement, lease under which it
is the lessee, mortgage, security agreement, bond, note or
other agreement or instrument binding upon it or affecting its
property; or
(4) any order, writ, judgment, award, injunction or decree binding
on it or affecting its property;
(c) as at the relevant Closing Date, this Agreement and all Related
Documents delivered by it hereunder have been duly executed and
delivered by the Financial Services Agent on behalf of it;
(d) as at the relevant Closing Date or on the date of delivery of the
applicable Related Documents, no authorization, approval or other
action by and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution, delivery and
performance by it of this Agreement or the Related Documents to be
delivered by it hereunder, except
(1) such notices or filings required to perfect the transfer
constituted by the Purchase, and
(2) such notices, filings or rulings required pursuant to the
Competition Act (Canada);
(e) this Agreement and the Related Documents to which it is a party are
its legal, valid and binding obligations enforceable against it in
accordance with their terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(f) as at the relevant Closing Date, there are, to its knowledge, no
actions, suits or proceedings of which the Purchaser has not advised
the Seller in writing, pending or threatened, against or affecting
the Purchaser or any of its property before any court, governmental
body or arbitrator which may adversely affect its ability to perform
its obligations hereunder or under the Related Documents to which it
is a party and it is not in default with respect to any order of any
court, governmental body or arbitrator which materially adversely
affects its ability to perform its obligations hereunder or
thereunder;
(g) it is not a non-resident as defined under the Income Tax Act
(Canada); and
(h) each agreement now or hereafter in effect between the Purchaser and
any Person other than the Seller (each such Person, an "Other
Seller") providing for or contemplating the sale of accounts
receivable or other financial assets to the Purchaser by such Other
Seller which accounts receivable or other financial assets form or
will form part of the assets securing the obligations of the
Purchaser under the Trust Indenture contains or will contain a
provision limiting such Other Seller's recourse on terms
substantially similar to, and no more favourable to such Other Seller
than, those contained in Section 2.3(f) of this Agreement.
SECTION 6 -- COVENANTS OF THE SELLER AND CHRYSLER FINANCIAL
6.1 Affirmative Covenants of the Seller. From the date hereof until the last
Final Collection Date, the Seller covenants with the Purchaser that the Seller
shall, unless the Purchaser otherwise consents in writing:
(a) comply with all laws, rules, regulations and orders applicable to the
Seller and all or any of its businesses, its properties and the
Related Secured Loan Rights, except where the failure to do so would
not materially adversely affect the Purchaser's interests hereunder,
the enforceability of the Related Secured Loan Rights (including the
collectability of the related Loan Receivables) or its ability to
perform its obligations hereunder or under the Purchased Assets;
(b) preserve and maintain its corporate existence, rights, franchises and
privileges and qualify and remain qualified as a foreign, extra
provincial or extra territorial corporation in each jurisdiction in
which the failure to do so would materially adversely affect the
interests of the Purchaser hereunder, the enforceability of the
Related Secured Loan Rights (including the collectability of the
related Loan Receivables) or the Seller's ability to perform its
obligations hereunder or under the Purchased Assets;
(c) at any time and from time to time during regular business hours,
permit the Purchaser, its agents or representatives upon five
Business Days' prior written notice to
(1) examine and make copies of all Records relating to the Related
Secured Loan Rights in its possession (or under its control),
including the applicable Secured Loans, and
(2) visit its branch offices for the purpose of examining such
Records and discussing matters relating to the Related Secured
Loan Rights and its performance under the Purchased Assets or
hereunder with any of its officers or employees having
knowledge of such matters;
(d) direct and require its auditors, at its own expense, to assist the
Purchaser's auditors to the extent and in such manner as is
reasonably required for the Purchaser's auditors to report on the
status of the Purchased Assets and the Related Secured Loan Rights
hereunder;
(e) ▇▇▇▇ its computer records in an appropriate manner to clearly
evidence the sale of the Secured Loans forming part of the Purchased
Assets to the Purchaser;
(f) fully perform in a timely manner and comply with all terms, covenants
and other provisions required to be performed and observed by the
Seller under Purchased Assets;
(g) notify the Purchaser promptly following any change of its corporate
name or any change of its chief executive office;
(h) comply in all respects with the Credit and Collection Policy in
regard to each of the Purchased Assets and the related Loan
Receivables;
(i) furnish to the Purchaser:
(1) as soon as possible and in any event within five Business Days
after any of the Seller's chief operating officer, chief
financial officer or any officer of the Seller authorized to
sign a Portfolio Report on behalf of the Seller becomes aware
or ought to have become aware of the occurrence of a
Significant Event or of any event that with the giving of
notice or passage of time or both may become a Significant
Event, a statement of such officer setting forth details as to
such Significant Event and the action which the Seller has
taken or is proposing to take with respect thereto; and
(2) promptly, from time to time, such other documents, records,
information or reports with respect to the Related Secured Loan
Rights or the condition or operations, financial or otherwise,
of it as may be in existence in written form or, if available
in databases, may be produced with existing software and which
the Purchaser may from time to time reasonably request;
(j) instruct all Obligors to remit all Collections in respect of any
Transaction to the address of the Collector (provided that so long as
the Seller shall remain the Collector in respect of such Transaction,
no special instruction need be given by the Seller to any Obligor
which currently is instructed to remit such Collections to the
Seller);
(k) if
(1) the Seller obtains, or is otherwise a loss payee or named
insured under, any policy of insurance with respect to damage
or third party liability claims relating to the Collateral, and
(2) the long term debt rating of Chrysler Financial by ▇▇▇▇▇'▇
falls below Ba2 (or its then equivalent),
obtain and maintain equivalent coverage with respect to the Related
Collateral under which the Purchaser is named insured or loss payee,
as the case may be, and provide prompt notice to the Purchaser of the
availability of such insurance or the receipt of notice of
termination thereof or the deletion of the Purchaser as a named
insured or loss payee thereunder;
(l) make all payments payable by it to government agencies in accordance
with applicable law and others where a statutory lien or deemed trust
might arise having priority over the Purchaser's interest in any
Related Secured Loan Rights or Related Collateral;
(m) record the Purchases constituted hereby as sales of assets for
accounting purposes;
(n) hold in trust for and on behalf of the Purchaser and itself, in
accordance with their respective interests, all documents and
instruments at any time and from time to time in the possession of
the Seller which evidence or secure the Purchased Assets;
(o) upon the written request of the Purchaser, or immediately upon the
occurrence of a Significant Event in respect of a Transaction and for
so long as such Significant Event is continuing, advise the
Purchaser, in writing, of the name or address of any Obligor with
respect to the applicable Related Secured Loan Rights;
(p) make all renewal and other registrations which it is entitled to make
and which are necessary to maintain the Purchaser's interest in the
Related Collateral as against third parties; and
(q) take all steps necessary to obtain the discharge of any financing
statement, registration, recording, filing or other document similar
in effect relating to any Related Secured Loan Rights, Collections
related thereto or Related Collateral on file except those in favour
of the Purchaser in accordance herewith or subordinate to the rights
of the Purchaser thereunder.
6.2 Negative Covenants of the Seller. From the date hereof until the last
Final Collection Date, the Seller covenants with the Purchaser that it shall
not, without the Purchaser's written consent:
(a) except as otherwise provided or permitted herein, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create any
Adverse Claim upon or with respect to, any Purchased Assets or any
Related Collateral, including the related Loan Receivables and
Collections or any account to which any such Collections are
deposited, or assign any right to receive income in respect of any
thereof or do any other thing to derogate from its grant hereunder or
prejudice the rights of the Purchaser hereunder or thereunder;
(b) make any change in the Credit and Collection Policy, which change
would materially impair the collectability of any Loan Receivable
forming part of the Purchased Assets;
(c) extend, amend or otherwise modify or waive any term or condition of
any of the Purchased Assets which modification or waiver would
materially impair the collectability of any Loan Receivable forming
part of the Purchased Assets;
(d) identify to any of its branch personnel the Purchased Assets as
having been purchased by the Purchaser or take any other action not
contemplated by this Agreement which would differentiate the
Purchased Assets from the other Secured Loans to which it is a party;
(e) permit to exist any financing statement, registration, recording,
filing or other publicly recorded document similar in effect
registered against or otherwise identifying its interest in any
Related Secured Loan Rights or Collections related thereto to be on
file except in favour of the Purchaser other than registrations in
favour of Persons who have expressly postponed in favour of the
Purchaser any claim they may have to the Purchased Assets; or
(f) prepare any financial statements which account for or reflect the
transactions contemplated hereby in any manner which is inconsistent
with the absolute ownership interest of the Purchaser in the
Purchased Assets.
6.3 Covenants of Chrysler Financial. From the date hereof until the last Final
Collection Date, Chrysler Financial covenants with the Purchaser that unless
the Purchaser otherwise consents in writing Chrysler Financial shall:
(a) comply with all laws, rules, regulations and orders applicable to it
and all or any of its businesses and properties, except where the
failure to do so would not materially adversely affect the
Purchaser's interest hereunder or its ability to perform its
obligations hereunder;
(b) preserve and maintain its corporate existence, except in the case of
a merger or other action permitted under the Long-Term Revolving
Credit Agreement and the Short-Term Revolving Credit Agreement each
dated as of May 1, 1995 between it, the Seller and Chemical Bank, as
agent, and the several banks party thereto, as amended, modified,
supplemented or restated from time to time, and where the continuing
or surviving entity assumes Chrysler Financial's obligations
hereunder;
(c) furnish to the Purchaser, unless the Seller has previously complied
with Section 6.1(i)(1), as soon as possible and in any event within
five Business Days after an officer of Chrysler Financial becomes
aware or ought to have become aware of the occurrence of each
Significant Event and each event which, with the giving of notice or
lapse of time or both, would constitute a Significant Event, a
statement of an officer of Chrysler Financial setting forth details
as to such Significant Event or event and the action which Chrysler
Financial has taken or is proposing to take with respect thereto;
(d) at any time following the occurrence of a Significant Event which is
continuing, ensure the due performance of all of the obligations of
the Seller (including those arising in its capacity as Collector, if
the Seller is at such time the Collector) under this Agreement and
any Related Document to which it is a party (the "Seller
Obligations") and, in the event of any failure of the Seller to
perform any Seller Obligations, assume all of the liabilities of the
Seller (including those arising in its capacity as Collector, if the
Seller is at such time the Collector) hereunder and thereunder; it
being agreed and understood that the obligations of Chrysler
Financial under this Section 6.3(d) shall be absolute and
unconditional under all circumstances regardless of any circumstances
which might constitute a legal or equitable discharge of a surety or
guarantor except payment and discharge of the Seller Obligations; and
Chrysler Financial shall be regarded as a principal obligor in
respect of the Seller Obligations and not as a surety or guarantor
thereof;
(e) make all payments to be made by it in the performance of its
obligations hereunder without set off or counterclaim and without
deduction or withholding for or on account of any present or future
taxes, levies, imposts, duties, charges, assessments or fees of any
nature (including any interest, penalties and additions thereto)
unless such deduction or withholding is required by any applicable
treaty, law, rule or regulation (as modified by the practice of any
relevant governmental revenue authority then in effect), in which
case it shall pay to the Purchaser, in addition to any payment to
which the Purchaser is otherwise entitled under this Agreement or any
Related Document, such additional amount as is necessary to ensure
that the net amount actually received by the Purchaser will equal the
full amount the Purchaser would have received had no such deduction
or withholding been required; and
(f) continue to hold, directly or indirectly, such number of shares in
the capital of the Seller such that the Seller continues at all times
to be a Subsidiary of Chrysler Financial.
SECTION 7 -- SIGNIFICANT EVENTS
7.1 Meaning of Significant Event. The term "Significant Event" means, in
respect of each Transaction, any of the following events or circumstances:
(a) the Seller or the Collector (if the Seller is the Collector) fails to
make any payment or deposit to be made by it hereunder when due and
such failure remains unremedied for two Business Days after written
notice thereof from the Purchaser;
(b) the Seller, the Collector (if the Seller is the Collector) or
Chrysler Financial fails to perform or observe any term, condition or
covenant to be performed or observed by it hereunder or under any
Related Document (other than that specified in Section 7.1(a)) and
such failure remains unremedied for ten Business Days after written
notice thereof has been given to the Seller or Chrysler Financial, as
the case may be, by the Purchaser (except with respect to any failure
on the part of the Seller or Chrysler Financial to perform its
obligations under Section 6.1(i)(1) or 6.3(c), as the case may be, in
which case no notice shall be required and no cure period shall
apply);
(c) any representation or warranty made in writing by the Seller or
Chrysler Financial or any of their respective officers in or pursuant
to this Agreement, any Portfolio Report or any other Related Document
proves to have been false or incorrect in any material adverse
respect when made, provided that, if any such representation or
warranty that is capable of being subsequently made true and correct
is made true and correct within ten Business Days of the receipt of
written notice to the Seller or Chrysler Financial, as the case may
be, from the Purchaser of such false or incorrect representation or
warranty, it shall not constitute a Significant Event (for greater
certainty, the parties hereto acknowledge and agree that the
representations contained in Section 5.1(o) and 5.1(q) shall be
deemed remediable for the purposes of this Section by the repurchase
by the Seller of a sufficient dollar value of Purchased Assets under
which the relevant Person is the applicable Obligor);
(d) any Insolvency Event occurs;
(e) there has occurred any material adverse change in the financial
condition or operations of the Seller or Chrysler Financial which
materially adversely affects the Seller's ability to service the
Related Secured Loan Rights or to perform any other of its
obligations hereunder;
(f) the Portfolio Loss Ratio is at any time equal to or greater than 4.0%;
(g) the Portfolio Delinquency Ratio is at any time equal to or greater
than 4.0%;
(h) the long term debt rating of Chrysler Financial by ▇▇▇▇▇'▇ falls
below Ba1 (or its then equivalent); or
(i) an event of default as defined in any Hedging Agreement shall have
occurred and be continuing with respect to the Seller or Chrysler
Financial.
7.2 Action Upon a Significant Event.
(a) Rights of Purchaser. If any Significant Event in respect of any
Transaction has occurred and is continuing, the Purchaser shall have, in
addition to the right to terminate the role of the Seller as Collector and to
appoint a Successor Collector in respect of such Transaction pursuant to
Section 3.2 hereof, its rights under Section 10.5 hereof and its other rights
and remedies hereunder and under the Related Documents, all other rights and
remedies under any applicable law and otherwise, which rights and remedies
shall be cumulative. However, if a Significant Event has occurred only by
reason of the occurrence of one or more Portfolio Events, the Purchaser shall
(unless there occurs another event other than a Portfolio Event which with the
giving of notice or the lapse of time or both would constitute a Significant
Event) not be entitled to exercise its right to appoint a Successor Collector
in accordance with Section 3.2 until 2:00 p.m. (Toronto time) on the Business
Day immediately following the Business Day upon which the Purchaser has given
notice to the Seller of the occurrence of the applicable Portfolio Event.
(b) Transitional Provisions. From time to time following the termination of
the Seller as Collector and the appointment by the Purchaser of a successor
Collector pursuant to Section 3.2:
(1) the Seller shall, at the Purchaser's request and at the Seller's
expense, notify all or any Obligors under the relevant Purchased
Assets of the Purchaser's ownership in any or all of the Related
Secured Loan Rights and direct that payments in respect thereof be
made directly to the Purchaser or its designee;
(2) the Seller shall, at the Purchaser's request and at the Seller's
expense, assemble all or any of the relevant Purchased Assets and
Records relating to, and the guarantees, indemnities and other
agreements forming part of, the Related Secured Loan Rights, and make
the same available to the Purchaser at a place selected by it or the
Successor Collector, and segregate, in a manner reasonably acceptable
to the Purchaser, all cash, cheques and other instruments
constituting Collections, Net Proceeds or Permitted Investments
received or held by the Seller from time to time, and, promptly upon
receipt, remit same to the Purchaser or the Successor Collector duly
endorsed or with duly executed instruments of transfer; and
(3) the Purchaser may take any and all steps, in the Seller's name and on
its behalf, necessary or desirable in the Purchaser's opinion, to
collect the relevant Loan Receivables forming part of the Related
Secured Loan Rights, including taking actions contemplated in Section
7.2(b)(2) where the Seller has failed to do so, and to remit the
proceeds of such Loan Receivables to the Successor Collector for
deposit in the relevant Purchaser's Account.
SECTION 8 -- MATTERS RELATING TO LIABILITY AND RESPONSIBILITIES
8.1 Delegation in Favour of Financial Services Agent. The Purchaser may
delegate to the Financial Services Agent all or any of its powers, rights and
discretions hereunder and under any Related Documents, and the Financial
Services Agent may from time to time take such actions and exercise such
powers as are delegated to it hereunder or thereunder or contemplated hereby
or thereby and all such actions and powers as are reasonably incidental
thereto.
8.2 Liability of Purchaser and Financial Services Agent. Neither the
Purchaser, the Financial Services Agent nor any of their respective directors,
officers, agents or employees shall be liable pursuant to this Agreement or
any Related Document for any action taken or omitted by it or them hereunder
or thereunder or in connection herewith or therewith, except for its or their
own gross negligence or wilful misconduct. Notwithstanding any provision of
this Agreement, other than the preceding sentence, or of any Related Document,
neither the Seller nor Chrysler Financial nor any Person acting on their
behalf shall have recourse against the Purchaser or the Financial Services
Agent, at law or in equity, in respect of any of the obligations of the
Purchaser or the Financial Services Agent under this Agreement or any Related
Document other than against the assets included in the Purchased Assets then
held by the Purchaser.
8.3 The Financial Services Agent and Affiliates. The Financial Services Agent,
any successor Financial Services Agent and their respective Affiliates may
generally engage in any kind of business with the Seller, Chrysler Financial,
any Obligor, any of their respective Affiliates and any Person who may do
business with or own securities of any of them, all as if the Financial
Services Agent or any such successor were not the Financial Services Agent and
without any duty to account therefor to the Seller, Chrysler Financial, the
Purchaser or any other Person.
8.4 Responsibilities of the Seller and the Purchaser. Notwithstanding anything
herein to the contrary:
(a) the Seller agrees to perform all of the non financial duties and
obligations of the obligee under the Purchased Assets notwithstanding
any of the transactions contemplated hereby;
(b) the exercise by the Purchaser or the Financial Services Agent of any
of their rights hereunder or under any Related Document will not
relieve the Seller from any of the duties or obligations that the
Seller has agreed to perform with respect to any Purchased Assets;
(c) neither the Purchaser nor the Financial Services Agent nor any of
their respective agents shall have any duty or obligation with
respect to any Related Secured Loan Rights nor shall any of them be
obligated to perform any of the non financial duties or obligations
which the Seller has agreed to perform with respect to related
Secured Loans; and
(d) the Seller shall promptly notify the Purchaser of any claim or
threatened claim of which the Seller is aware which may, in the
reasonable opinion of the Seller, result in any liability to
indemnify the Purchaser pursuant to Section 9.
8.5 Power of Attorney. The Seller hereby irrevocably constitutes and appoints
the Purchaser, the Financial Services Agent, any Successor Collector, and any
officer of the trustee of the Purchaser or any officer of the Financial
Services Agent from time to time, with full power of substitution, as the
Seller's true and lawful attorney in fact with full irrevocable power and
authority, coupled with an interest, in the place and stead of the Seller and
in the name of the Seller or in its own name, from time to time in the
Purchaser's, the Financial Services Agent's or the Successor Collector's
discretion, as the case may be, for the purpose of enforcing the Related
Secured Loan Rights and taking and doing in the name of the Seller and/or in
its own name all steps, actions, proceedings and other things which the
Purchaser, the Financial Services Agent or any Successor Collector may from
time to time, in its sole and absolute discretion, consider to be necessary,
desirable or appropriate for the administration, servicing and collection of
the Purchased Assets including, without limitation, to transfer or otherwise
dispose of any or all Purchased Assets, to endorse or sign the name of the
Seller on any instrument or document representing payment on account of or in
any other way relating to any Purchased Asset and to take any legal steps,
actions or proceedings for the collection and enforcement of any Purchased
Assets or for the enforcement or realization of any Related Security.
SECTION 9 -- INDEMNIFICATION
9.1 Indemnities by the Seller. Without prejudice to any other rights of the
Purchaser or the Financial Services Agent or their respective agents hereunder
or under any applicable law, the Seller hereby agrees to indemnify the
Purchaser, the Financial Services Agent and their respective agents and agrees
to save them harmless from and against any and all damages, losses, claims,
liabilities, costs and expenses (including legal fees and disbursements on a
solicitor and client basis) awarded against or incurred by them arising out of
or as a result of:
(a) reliance on any written representation or warranty made or
information provided by the Seller (or any of its officers) in or
pursuant to this Agreement, any Portfolio Report or any other Related
Document which was incorrect in any materially adverse respect when
made, deemed made or provided;
(b) the failure by the Seller to repurchase any Ineligible Secured Loan
forming part of the Purchased Assets in accordance with Section 2.13;
(c) the failure by the Seller on its own behalf or in its capacity as
Collector, to comply with any applicable law, rule or regulation with
respect to any Purchased Assets or with respect to any Related
Secured Loan Rights or to perform its obligations thereunder, or the
nonconformity of any applicable Secured Loan with any applicable law,
rule or regulation; provided that this clause 9.1(c) shall not apply
to any law, rule or regulation relating to the perfection of
ownership or Security Interests;
(d) the failure of the Seller to transfer to the Purchaser beneficial
ownership in the Purchased Assets which are, or are intended to be
transferred to the Purchaser hereunder and any payments made or
payments due thereunder, free and clear of any Adverse Claim or right
of any other Person except to the extent otherwise permitted herein;
(e) any dispute, claim, set off or defense of an Obligor against the
Seller to the performance of any obligation in connection with a
Related Secured Loan Right or the payment of any Loan Receivable
forming part thereof;
(f) any product liability or warranty claim or personal injury or
property damage suit or other similar or related claim or action of
whatsoever sort arising out of or in connection with any Related
Collateral to the extent not covered by insurance of which the
Purchaser has the benefit;
(g) any failure of the Seller to perform or observe any of its duties or
obligations hereunder or under the Related Documents, including its
duties and obligations as Collector;
(h) any Canadian, foreign, federal, provincial, state, municipal, local
or other tax of any kind or nature whatsoever which may be imposed on
the Purchaser or the Financial Services Agent on account of any
payment made by the Seller under this Section 9.1 after giving effect
to any deduction relating to the matters indemnified;
(i) any claims, disputes, damages, penalties and losses arising from the
Related Secured Loan Rights relating to the Purchased Assets, other
than
(1) losses attributable to any Obligor's failure to discharge its
payment obligations or other default under the applicable
Secured Loan, or
(2) losses attributable to the gross negligence or wilful misconduct
of the Purchaser or the Financial Services Agent;
(j) the return or transfer by the Purchaser in error of any amount of
Collections or Net Proceeds received pursuant to Section 2 to the
Seller for any reason whatsoever other than pursuant hereto;
(k) any failure of the Seller to comply with any applicable law regarding
the filing or discharge of registrations required to be made in
respect of the Purchased Assets in accordance with the laws of the
applicable province or territory of Canada; or
(l) actual losses as a result of the failure of the Seller or the
Purchaser to comply with the requirements of any applicable bulk
sales legislation.
9.2 Payment. Any amounts subject to indemnification under Section 9.1 shall be
paid to the Purchaser by the Seller in accordance with Section 2.5(d)(3).
9.3 Limited Indemnity by the Seller. Without prejudice to any other rights of
the Purchaser or the Financial Services Agent hereunder or under any
applicable law, the Seller hereby indemnifies the Purchaser, the Financial
Services Agent and their respective agents and agrees to save them harmless
from and against any and all damages, losses, claims, liabilities, costs and
expenses (including reasonable legal fees and disbursements on a solicitor and
client basis) incurred in respect of a Transaction by or on behalf of the
Purchaser or the Financial Services Agent in respect of any amounts payable by
the Purchaser arising out of or as a result of any breach of the terms hereof
or of any Related Document by the Seller or Chrysler Financial and not
otherwise recoverable from the Seller or Chrysler Financial, provided,
however, that
(a) except in respect of a breach of the representations and warranties
set out in Sections 5.1(h)(1) and the indemnities and obligations set
out in Sections 2.9(b), 2.13 and 7.1(c), the liability of the Seller
under Section 9.1 or this Section 9.3 shall not be greater than the
then available balance in the relevant Deferred Purchase Account, and
(b) this limited indemnity shall in no circumstances be available to
recover amounts not otherwise recovered by the Purchaser because of
any default by an Obligor under the terms of any Purchased Asset.
9.4 Co-operation in Litigation and Proceedings. The Seller, on the one hand,
and the Purchaser, on the other, agree to assist the other party, at the
request of such other party and at such requesting party's expense, in any
action, suit or proceeding brought by or against, or any investigation
involving such requesting party (including the Financial Services Agent, with
respect to the Purchaser), but not including actions between the Seller and
the Purchaser relating to any of the transactions contemplated hereby or to
any of the Related Secured Loan Rights. If the Seller may be liable under
Section 9.1 or 9.3 in respect of any damages, losses, claims, liabilities,
costs or expenses as a result of or in connection with any such action, suit,
proceeding or investigation, the Seller will have the right, on behalf of the
Purchaser but at the Seller's expense, to defend such action, suit or
proceeding, or participate in such investigation, with counsel selected by it,
and will have sole discretion as to whether to litigate, appeal or settle.
SECTION 10 -- MISCELLANEOUS
10.1 Amendments, etc.
(a) General. No amendment or waiver of any provision hereof nor consent to any
departure by the Seller or Chrysler Financial therefrom shall in any event be
effective (in whole or in part) unless in writing and signed by the Seller,
the Collector, Chrysler Financial, the Purchaser and, to the extent it affects
the rights, duties or obligations of the Financial Services Agent, the
Financial Services Agent.
(b) Third Party Consents. The Seller acknowledges that the Purchaser's consent
to any amendment, waiver, discharge or termination of this Agreement or
certain provisions thereof (each, a "Proposed Contractual Change") may be
subject to obtaining the prior written consent of lenders under Credit Support
Agreements and Liquidity Agreements and/or the Indenture Trustee (each, a
"Third-Party Consent"). The Purchaser agrees to advise the Seller if a
Proposed Contractual Change requires a Third-Party Consent; however, the
Purchaser shall have no obligation to obtain or endeavour to obtain such
Third-Party Consent. In addition, the Purchaser's failure to give its consent
to any Proposed Contractual Change shall not be considered unreasonable,
within the meaning of any rule of law imposing on a contracting party an
implied obligation to act reasonably, if a Third-Party Consent has not been
given to a Proposed Contractual Change.
10.2 Entire Agreement. This Agreement contains the entire agreement between
the parties relative to the subject matter hereof and supersedes all contrary
prior and contemporaneous agreements, term sheets, commitments,
understandings, negotiations and discussions, whether oral or written. There
are no warranties, express or implied, representations or other agreements
between the parties in connection with the subject matter hereof except as
specifically set forth herein.
10.3 Notices, etc. All notices and other communications provided for hereunder
must, unless otherwise stated herein, be in writing and telecopied or
delivered, as to each party hereto, at its address set forth under its name on
the signature pages hereof, or at such other address designated by such party
in a written notice in the manner contemplated in this Section 10.3 to each of
the other parties hereto. Any such notice or other communication shall be
deemed to have been given, made and received on the day of delivery if
delivered and on the first Business Day after telecopying if telecopied.
10.4 No Waiver; Remedies. No failure on the part of the Purchaser, the
Financial Services Agent or the Seller to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor will
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. Except as
otherwise provided, the remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
10.5 Binding Effect; Assignability;
(a) General. This Agreement shall be binding upon and enure to the benefit of
the Seller, Chrysler Financial, the Purchaser and the Financial Services
Agent, and their respective successors and permitted assigns. Except as
provided in this Agreement, no party hereto may assign its rights hereunder or
any interest herein without the prior written consent of the other parties
hereto.
(b) Sales etc. by Purchaser. The Seller and the Purchaser acknowledge that the
Seller has entered into this Agreement and will enter into each Transaction on
the assumption that the only source of payment to the Seller for the portion
of the Deferred Purchase Price described in Section 1.1(aa)(2) will be the
Collections and Net Proceeds payable to the Purchaser as owner of the Secured
Loans and Related Secured Loan Rights and that if the Purchaser should assign
the Purchased Assets to a Person not bound by this Agreement, such source of
payment may be impaired and the interests of the Seller thereby prejudiced.
Accordingly, without in any way derogating from the Purchaser's absolute
ownership of the Purchased Assets, the Purchaser shall not sell, assign or
transfer any Purchased Assets or Seller Receivable (in whole or in part) to
any Person (including secondary purchasers, issuers of letters of credit to
the Purchaser, and their assignees) (each such Person, a "Transferee") or
sell, assign or transfer to a Transferee any of the Purchaser's rights
hereunder or under any Related Document or interest herein or therein for the
purpose of giving effect to any such sale, assignment or transfer of Purchased
Assets or Seller Receivables unless the Transferee agrees in writing before
the completion of such sale, assignment or transfer to be bound by the terms
and conditions of this Agreement as if it were the Purchaser hereunder to the
extent of the Purchased Assets, Seller Receivables or other rights to be sold,
assigned or transferred. Upon any sale, assignment or transfer, the Transferee
shall be fully subrogated to all rights, benefits and privileges of the
Purchaser hereunder or thereunder and shall assume all obligations relating
thereto.
10.6 Termination and Survival. This Agreement shall remain in full force and
effect until the last Final Collection Date; provided, however, that:
(a) the Purchaser's rights and remedies with respect to any incorrect
representation or warranty made or deemed to be made by the Seller or
Chrysler Financial herein; and
(b) the indemnification and payment provisions of Section 9 and
Section 10.10;
shall be continuing and shall survive any termination hereof for a period of
five years.
10.7 Performance by Financial Services Agent. The Purchaser has advised the
Seller that the Purchaser has appointed Royal Bank of Canada as the Financial
Services Agent to advise and act on the Purchaser's behalf in connection with
this Agreement, and the Seller acknowledges and agrees that the Financial
Services Agent will have full power and authority to represent and act for and
on behalf of the Purchaser in all dealings and other matters provided for in
or relating to this Agreement unless otherwise specifically provided.
Performance of any act or obligation of the Purchaser hereunder by the
Financial Services Agent will be deemed to be performance of such act or
obligation by the Purchaser. The Seller shall be entitled to rely on any
document prepared by the Financial Services Agent on behalf of the Purchaser
as if the document had been prepared by the Purchaser.
10.8 Payments by Seller.
(a) Method of Payment. Each payment or remittance required to be made by the
Seller or the Collector to the Purchaser hereunder shall be made on the due
date therefor in Canadian Dollars and in immediately available funds at the
office of the Financial Services Agent.
(b) Interest on Overdue Payments. Each of the Seller and the Collector shall
pay to the Purchaser interest on any amount not paid or remitted by the Seller
to the Purchaser when due hereunder. Such interest shall be computed on a
daily basis at a rate per annum equal to 2% above the Prime Rate in effect
from time to time, shall be payable upon demand by the Purchaser from time to
time, and shall be compounded on the first Business Day of each month.
10.9 Governing Law. This Agreement shall be governed by and construed in
accordance with, the laws of the Province of Ontario, except to the extent
that the validity or perfection of the Purchaser's interests in any Related
Secured Loan Rights or Related Collateral or its remedies hereunder in respect
thereof are governed by the laws of a different jurisdiction.
10.10 Costs, Expenses and Taxes.
(a) Fees and Expenses. Notwithstanding the rights of indemnification provided
for in Section 9 and 10.10(b), the Seller shall not be responsible for payment
of any costs and expenses of the Purchaser and the Financial Services Agent in
connection with the preparation, execution and delivery of this Agreement and
the Related Documents, or any of their out of pocket expenses, or of any fees
or disbursements of counsel for the Purchaser and the Financial Services Agent
with respect thereto.
(b) Taxes, etc. The Seller shall:
(1) pay on demand any and all stamp, filing, recording and other taxes
and fees payable or determined to be payable in connection with the
enforcement of this Agreement or any Related Document (other than any
applicable goods and services tax);
(2) to the extent not reimbursed pursuant to Section 2.4, reimburse on
demand the Purchaser for any loss resulting from a miscalculation by
the Purchaser in the administration of the Agreement and the Related
Documents; provided, however, that the Purchaser shall request such
reimbursement in writing and will explain, in reasonable detail, such
miscalculation; and, provided, further, however, that the amount of
such reimbursement shall not exceed the amount which should initially
have been paid to the Purchaser but for such miscalculation, plus
interest at the applicable Discount Rate;
(3) subject to Section 10.10(a), pay on demand any other costs, expenses
and taxes (excluding any taxes except amounts referred to in Section
10.10(b)(1)), incurred by the Purchaser in connection with the
Purchase (including costs and expenses incurred in performing the
Purchaser's obligations hereunder); provided, however, that the
Purchaser will request such amounts in writing and will explain, in
reasonable detail, the calculation of such amounts; and
(4) subject to Section 10.10(a), pay on demand any costs and expenses of
the Purchaser and the Financial Services Agent with respect to
advising the Purchaser and the Financial Services Agent as to their
respective rights and remedies hereunder and under the Related
Documents or any costs related to enforcement actions by the
Purchaser against any Obligor related to enforcement or advice with
respect to the Purchaser's rights against such Obligor.
10.11 Change in Law. If the introduction of or any change (including, without
limitation, any change by way of imposition of a tax on capital or other tax
on or in respect of the Purchaser) in or in the interpretation of any law or
regulation by any court or governmental authority charged with the
administration thereof has the effect of
(a) increasing the cost to the Purchaser of making, funding or
maintaining a Purchase hereunder or agreeing to make a Purchase
hereunder, or reducing the rate of return to the Purchaser in
connection therewith; or
(b) reducing the amount receivable with regard to any Loan Receivable
forming part of the Related Secured Loan Rights;
the Seller shall, from time to time, upon demand by the Purchaser and to the
extent not otherwise recovered pursuant to Section 2.6(a)(3), pay to the
Purchaser that portion of such increased costs incurred, amounts not received
or receivable, or compensation for such reduction in rate of return which is
attributable to making, funding or maintaining such Purchase hereunder. The
Purchaser shall provide the Seller with a certificate setting forth its
computation of such increased costs, amounts not received or receivable or
reduction in rate of return, which computation may utilize such averaging and
attribution methods the Purchaser believes to be reasonable. Such certificate
shall be prima facie evidence, absent manifest error, of the amount payable to
the Purchaser pursuant to this Section 10.11. The Purchaser shall, upon
becoming aware of an event or circumstance that is likely to, with the passage
of time or otherwise, entitle it to demand payment pursuant to this Section
10.11, promptly notify the Seller.
10.12 Failure to Perform. If the Seller, the Collector (if the Seller is the
Collector) or Chrysler Financial fails to perform any of its agreements or
obligations hereunder or under any Related Document, the Purchaser may (but
will not be required to) itself perform, or cause to be performed, such
agreement or obligation, and the expenses of the Purchaser incurred in
connection therewith shall be payable by the Seller as provided in Section
10.10(b)(3).
10.13 Consent to Jurisdiction; Waiver of Immunities.
(a) Submission to Jurisdiction. The Seller hereby irrevocably submits to the
non exclusive jurisdiction of any court sitting in the City of Toronto in any
action or proceeding arising out of or relating to this Agreement or to any
Related Document, and the Seller hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such
court. The Seller hereby irrevocably waives, to the extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding. The Seller agrees that a final judgment in any action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(b) Other Jurisdictions. Nothing in this Section 10.13 shall affect the right
of the Purchaser to serve legal process in any other manner permitted by law
or affect its right to bring any action or proceeding against the Seller or
Chrysler Financial or their respective properties in the courts of other
jurisdictions.
(c) Waiver of Immunity. To the extent that the Seller has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment before judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, the Seller hereby irrevocably waives, to the extent permitted by
law, such immunity in respect of its obligations hereunder.
10.14 Confidentiality.
(a) General. The parties hereto acknowledge that any Terms Schedule and any
document which contains any of the information set forth in paragraphs 3 and 4
of any Terms Schedule, or any agreement that one party has received from the
other to which the receiving party is not a signatory or addressee or any
legal opinion not addressed to the receiving party and all data and
information provided hereunder by the Seller to the Purchaser or the Purchaser
to the Seller (all such Terms Schedules, documents, agreements, opinions, data
and information, collectively, "Confidential Information") shall be considered
as confidential information by the other and shall not be disclosed by the
recipient to any other Person except as permitted under Section 10.14(b).
(b) Exceptions. The Purchaser may disclose Confidential Information to the
Financial Services Agent, rating agencies, trustees, prospective credit
enhancers or secondary purchasers or prospective or actual liquidity or credit
support lenders, professional advisors (including legal counsel) and
governmental or regulatory authorities as required by law or to implement the
terms of this Agreement, the Related Documents, the Purchaser's securitization
program or the financing thereof. The Seller and Chrysler Financial may
disclose Confidential Information to governmental and regulatory authorities
as required by law or to implement the terms of this Agreement, their lenders
and professional advisors (including legal counsel) and taxing authorities in
connection with the preparation of financial statements or tax returns or to
satisfy any of the conditions precedent set out in Section 4.1.
Notwithstanding Section 10.14(a), any party to this Agreement may provide
copies of this Agreement to any Person but not including the Exhibits.
10.15 Further Assurances. The parties hereto agree, from time to time, to
enter into such further agreements and to execute all such further instruments
as may be reasonably necessary or desirable to give full effect to the terms
of this Agreement or any Related Document.
10.16 Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same agreement.
10.17 Severability. Any provision hereof which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, to the extent permitted by
law, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
10.18 Limitation of Liability of Issuer Trustee. This Agreement has been
entered into by the Issuer Trustee solely in its capacity as trustee of Pure
Trust and is not binding on the Issuer Trustee in any other capacity. Resort
may not be had to, nor recourse or satisfaction be sought from, the private
property of the Issuer Trustee, its directors, officers, employees, or agents,
and resort will be had solely to the property of Pure Trust held in trust by
the Issuer Trustee for the payment, performance or satisfaction of any
liability or obligation of the Purchaser or the Issuer Trustee hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement.
CHRYSLER CREDIT CANADA LTD.
By: "▇▇▇▇▇ ▇ ▇▇▇▇▇"
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Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Assistant Treasurer
Address for Notices:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ 8268
Attn: Secretary
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE ROYAL TRUST COMPANY in its capacity as
trustee of PURE TRUST
By: "R. Hong"
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Signing Officer
By: "▇▇▇▇▇ ▇▇▇▇▇▇▇"
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signing Officer
Address for Notices:
Royal Bank of Canada as Financial Services
Agent for Pure Trust Structured Finance and
Loan Syndications
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: Pure Trust
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
CHRYSLER FINANCIAL
CORPORATION
By: "▇▇▇▇▇ ▇ ▇▇▇▇▇"
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Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Assistant Treasurer
Address for Notices:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ 8268
Attn: Secretary
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit 1.1(h) - Form of Assignment
ASSIGNMENT
This Assignment is dated as of ______, 19__ between
CHRYSLER CREDIT CANADA LTD.,
a corporation amalgamated under
the laws of Canada,
as Assignor
and
THE ROYAL TRUST COMPANY,
as trustee of PURE TRUST
a trust established under
the laws of the Province of Ontario,
as Assignee
RECITALS
The Assignor has agreed to sell and the Assignee has agreed to purchase
the Secured Loans described in the microfiche attached hereto as Schedule A
together with the Related Secured Loan Rights upon certain terms and
conditions.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, the parties agree as follows.
SECTION 1 -- INTERPRETATION
1.1 Certain Defined Terms. In this Assignment, including the recitals:
(a) Administrative Charges means extension fees, insurance premiums, charges
for returned cheques or dishonoured payments or dishonoured transfer
instructions and other similar charges and, before the appointment of a Person
other than the Assignor as Collector, late payment charges and refinance
charges.
(b) Collateral means a new or used automobile or light duty truck and other
personal property, together with all equipment, attachments, additions,
accessories and enhancements thereto, securing an Obligor's indebtedness and
obligations under a Secured Loan.
(c) Collector means, at any time, the Assignor, its successor or any other
Person or its successor in its capacity as collector and servicer of the
Secured Loans.
(d) Loan Receivables means all amounts payable with respect to any Secured
Loan (not including amounts which are due and payable to the Assignor on or
before [insert relevant Cut-Off Date] including vehicle damage charges and
other moneys payable by an Obligor under a Secured Loan (exclusive of certain
Administrative Charges, costs, expenses, amounts payable by way of indemnity
or taxes required to be collected and remitted by the Assignor).
(e) Obligor means a Person obligated to make payments pursuant to a Secured
Loan, including where the context permits or requires, any person obligated to
make such payments pursuant to any guarantee or indemnity that constitutes
Related Security.
(f) Person means an individual, partnership, corporation, trust, joint
venture, unincorporated association, government (or any agency or political
subdivision thereof) or other entity.
(g) Proceeds has the meaning given to it in the Personal Property Security Act
(Ontario) and any Act that may be substituted therefor, as from time to time
amended, and in addition, includes personal property in any form derived
directly or indirectly from any dealings with the Related Collateral or that
indemnifies or compensates for the Related Collateral if destroyed or damaged
and proceeds whether or not of the type, class or kind as the original
proceeds.
(h) Purchased Assets means the Secured Loans listed or referred to in the
microfiche attached as Schedule A hereto and all Related Secured Loan Rights.
(i) Records means all contracts, credit applications, credit analysis and
reports and "quality indicator score" records, books, records, reports and
other documents and information (including, to the extent obtainable by way of
existing software controlled by the Collector, hard copies of all data
maintained in databases of the Collector and on tapes, disks, punch cards and
other media under its control) maintained by the Collector or held or created
by the Collector with respect to the Secured Loans and the related Obligors,
including any agreement pursuant to which the Assignor acquired its right,
title and interest in and to the Secured Loans under which it is not the
original obligee.
(j) Related Collateral means, with respect to any Purchased Asset, the
Collateral relating thereto.
(k) Related Secured Loan Rights means any Secured Loan Rights relating to the
Purchased Assets.
(l) Related Security in respect of a Secured Loan means any guarantee,
indemnity or other agreement or arrangement of whatsoever character (including
all Security Interests and all property subject thereto) from time to time
supporting or securing or purporting to support or secure payment or
performance of an Obligor's obligations in respect of such Secured Loan,
whether pursuant to such Secured Loan or otherwise, including any recourse
available to the Assignor from the originating obligee pursuant to the
applicable assignment agreement.
(m) Secured Loans means retail instalment sale contracts and any other
agreements or combinations of agreements or portions thereof
(1) evidencing indebtedness of an Obligor, and
(2) creating a Security Interest over Collateral as security for such
indebtedness, other than agreements evidencing indebtedness of an
Obligor as lessee, as any such agreements may be amended, modified,
supplemented, restated or replaced from time to time.
(n) Secured Loan Rights means, in respect of any Secured Loan, the following:
(1) all rights and benefits accruing to the Assignor under such Secured
Loan, including all right, title and interest in and to the Loan
Receivables payable in respect of such Secured Loan;
(2) all right, title and interest of the Assignor in and to the applicable
Collateral;
(3) all right, title and interest of the Assignor in or to payments
(including both proceeds and premium refunds) under any insurance
policies maintained by the Obligor for the benefit of the Assignor
pursuant to the terms of such Secured Loan, to the extent the same
indemnify for loss or damage to the applicable Collateral;
(4) all right, title and interest of the Assignor in and to payments made
on account of any loss or damage to the applicable Collateral whether
under such Secured Loan or otherwise;
(5) all claims, demands, actions, damages and indemnities arising from the
manufacturers' or sellers' warranties relating to the applicable
Collateral;
(6) the benefit of all covenants with respect to the applicable Collateral
by the Obligor under such Secured Loan to the extent allocable to the
outstanding Loan Receivables under the terms of such Secured Loan, use
and insurance obligations;
(7) the right of the Assignor to ask, demand, ▇▇▇ for, collect, receive
and enforce any and all amounts payable under such Secured Loan in
respect of the Related Collateral and to enforce all other covenants,
obligations, rights and remedies thereunder with respect thereto;
(8) all of the Assignor's right, title and interest in, to and under all
Related Security;
(9) all Records pertaining to such Secured Loan; and
(10) all Proceeds of or relating to the foregoing.
(o) Security Interest has the meaning given to it in the Personal Property
Security Act (Ontario).
SECTION 2 - ASSIGNMENT.
2.1 Assignment. The Assignor hereby grants, bargains, sells, assigns,
transfers, conveys and sets over at and as of the date hereof, absolutely and
not by way of security only, unto the Assignee, its successors and permitted
assigns, all of the Assignor's right, title and interest in and to the
Purchased Assets.
2.2 Further Assurances. The Assignor covenants and agrees with the Assignee,
its successors and permitted assigns, that the Assignor will from time to time
and at all times hereafter, upon the request of the Assignee, its successors
and permitted assigns, make, do and execute or cause and procure to be made,
done and executed, all such further acts, deeds or assurances as may be
reasonably required by the Assignee, its successors and permitted assigns, for
the purpose of registering or filing this Assignment or notice thereof in
appropriate offices of public record and protecting, perfecting or evidencing
the ownership interest of the Assignee in the Purchased Assets.
2.3 Governing Law. This Assignment shall be governed by the laws of the
Province of Ontario and the laws of Canada applicable therein.
IN WITNESS WHEREOF, the parties have executed this Assignment.
CHRYSLER CREDIT CANADA LTD.,
By: _________________________
THE ROYAL TRUST COMPANY in its
capacity as trustee of PURE TRUST
By: _________________________
Name:
Title: Authorized Signing Officer
By: _________________________
Name:
Title: Authorized Signing Officer
Exhibit 1.1(cp) -- Form of Terms Schedule
In consideration of the mutual covenants contained and
incorporated herein, the undersigned hereby agree as follows:
1. Interpretation. Reference is made to a Master Receivables Purchase
Agreement (the "MRPA") made as of July 24, 1995 between the undersigned.
Capitalized terms used herein and not otherwise defined have the meanings
given to them in the MRPA. Section 2.1(a) of the MRPA provides that the
undersigned may execute and deliver a Terms Schedule which, upon such
execution and delivery, shall evidence their binding agreement with respect to
the purchase and sale of Secured Loans and Related Secured Loan Rights. This
executed Terms Schedule constitutes such an agreement. Except to the extent
modified, replaced, restated or supplemented herein, the terms and conditions
of the MRPA are incorporated by reference herein, mutatis mutandis. The term
"Purchase" when used herein means the purchase and sale of the Secured Loans
identified in Appendix A hereto, and the Related Secured Loan Rights.
References herein to paragraphs are to the paragraphs of this Terms Schedule
and references to Sections are to the Sections to the MRPA.
2. Types of Transactions. [This Terms Schedule is not a Related Terms Schedule
at the date hereof, provided however that a Terms Schedule entered into after
the date hereof may provide that this Terms Schedule is a Related Schedule
with respect to one or more Purchases effected after the date hereof.]
OR
[This Terms Schedule is a Related Schedule, with the intention that the
Secured Loans identified in Appendix A hereto and the Related Secured Loan
Rights shall, together with the Secured Loans identified in the Appendices to
the Terms Schedules dated ______, ______ and ______ (and in any Terms Schedule
entered into after the date hereof which specifies that it is related to this
Term Schedule) and the Related Secured Loan Rights, from and after the Closing
Date specified in paragraph 3 hereof, constitute one pool of Purchased
Assets.]
3. Specific Terms. (1) Terms specific to the Purchase to which this Terms
Schedule relates are as follows:
Section 1.1:
1.1(o) Closing Date for this Purchase:
1.1(w) Cut-Off Date for this Purchase:
1.1(at) aggregate Net Book Value of Secured Loans subject to this
Purchase: $
1.1(bf) Prepayment Amount for this Purchase: $
Section 5.1(o)
Used Vehicle Rate Percentage: %
(2) Terms specific to the Transaction to which this Term Schedule (and all
Related Terms Schedules, if any) relates are as follows:
Section 1.1
Concentration Limit Percentage: %
Deferred Purchase Account Number:
Required APR: [if inapplicable, enter 0]%
Required Reserve Floor: $
Reserve Rate: %
Section 2.7(a)(1)
Cost of funds calculation:
Cost of funds for each Settlement Period shall be calculated on the
basis of a percentage equal to the weighted average of the following
percentages:
(a) to the extent Purchaser's Indebtedness is funded by Notes,
the weighted average of the rate of interest or discount
payable on such Notes during the Settlement Period;
(b) to the extent Purchaser's Indebtedness is funded under the
Liquidity Agreement or the Credit Support Agreement in
effect at such time (the "Loan Agreements"):
(i) in respect of Purchaser's Indebtedness incurred by
way of Prime Loans (as defined in the Loan
Agreements):
[insert appropriate reference rate] + ______%
(ii) in respect of Purchaser's Indebtedness incurred by
way of Bankers' Acceptances, Discount Notes or BA
Equivalent Loans (each as defined in the Loan
Agreements):
[insert appropriate reference rate] + ______%;
and shall include appropriate adjustments for Increased Costs and actual
payments or receipts under Hedging Agreements.
[Terms not otherwise defined under this heading have the meaning given
to them in Appendix B.]
Section 2.7(a)(2)
Program Fee rate: %
4. Hedging Agreements. [Identify Hedging Agreements, if any.]
IN WITNESS WHEREOF the parties have executed this Terms Schedule to
evidence their agreement hereto as of the day of , 19 .
CHRYSLER CREDIT CANADA LTD., as
Seller and Collector
By: _________________________
THE ROYAL TRUST COMPANY in its
capacity as trustee of PURE TRUST
By: _________________________
Name:
Title: Authorized Signing Officer
By: _________________________
Name:
Title: Authorized Signing Officer
CHRYSLER FINANCIAL CORPORATION
By: _________________________
Appendix B
Defined Terms.
(a) Bankers' Acceptances means ______
(b) BA Equivalent Loan means ______
Exhibit 1.1(be) - Sample Portfolio Report
(microfiche image)
Exhibit 1.1(as) - Permitted Investments
Subject to the next following sentence, the following are Permitted
Investments for the purposes of this Agreement:
(a) negotiable instruments or securities in bearer or registered form with a
maturity of not more than 45 days, which evidence:
(1) obligations of or guaranteed by the Government of Canada so long as
they have the Required Rating (as hereinafter defined);
(2) obligations of or guaranteed by a province or municipality of Canada
so long as they have the Required Rating;
(3) deposits or bankers' acceptances issued or accepted by any Canadian
bank so long as it has the Required Rating;
(4) commercial paper of Canadian corporations or other Canadian issuers
so long as it has the Required Rating; or
(b) demand deposits in any Canadian bank so long as they have the Required
Rating.
Notwithstanding the foregoing, a negotiable instrument of any province,
municipality, Canadian bank, Canadian corporation or other Canadian issuer
(other than the Government of Canada) or a demand deposit in a Canadian bank
shall not constitute a Permitted Investment if the face amount of such
instrument or such deposit, together with the face amount of all or other
instruments or deposits of the same entity then held by the Purchaser, would
exceed the greater of $5,000,000 and 10% of the face amount of all Permitted
Investments then held by the Purchaser.
"Required Rating" in respect of any Person at any time means the rating of
such Person's short term indebtedness equal to at least the higher of the
rating then assigned by Dominion Bond Rating Service Limited and CBRS Inc. to
the Notes of the Purchaser and R-1 (middle) from Dominion Bond Rating Service
Limited and A-1+ from CBRS Inc.
Exhibit 1.1(bz)(2)(B)(iii) - Dollar Weighted Average Contractual Life
Calculation
Weighted Avg. Term to Maturity (in years)
DWACL + _______________________________________
2
and will in principle be generally represented by the following formula:
N
[Sigma]P[Subscpt_On]i[Subscpt_Off] *T;
i = 1
DWACL = _______________________________________
N
[Sigma]P[Subscpt_On]i[Subscpt_Off] *365
i = 1
where:
DWACL = dollar weighted average contractual life, in
years
P[Subscpt_On]i[Subscpt_Off] = principal contractually to be paid at the "i"th
day from calculation date
T[Subscpt_On]i[Subscpt_Off] = "i"th day from calculation date
N = number of days remaining of contractual
principal payments
Exhibit 4.1(a)(17)-1 - Form of Opinion of Seller's Counsel
[LETTERHEAD OF GOWLING, STRATHY & ▇▇▇▇▇▇▇▇▇]
July 27, 1995
TO: THOSE PERSONS LISTED ON SCHEDULE A ATTACHED HERETO
Dear Sirs:
Re: Master Receivables Purchase Agreement made as of
July 24, 1995 among Chrysler Credit Canada Ltd.,
Pure Trust and Chrysler Financial Corporation;
Terms Schedule dated July 24, 1995
_____________________________________________________
We have acted as counsel to Chrysler Credit Canada Ltd. (the "Seller") and
Chrysler Financial Corporation ("Chrysler Financial") in connection with the
preparation, execution and delivery of the master receivables purchase
agreement made as of July 24, 1995 (the "Purchase Agreement") among the
Seller, Pure Trust (the "Purchaser") and Chrysler Financial, the terms
schedule dated July 24, 1995 (the "Terms Schedule") made among the same
parties and the assignment dated July 27, 1995 (the "Assignment") between the
Seller and the Purchaser (the Purchase Agreement, the Terms Schedule and the
Assignment being collectively referred to as the "Documents"). This opinion is
furnished to you pursuant to Section 4.1(a)(15) of the Purchase Agreement.
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings given them in the Purchase Agreement and the Terms Schedule.
We have examined originals or copies identified to our satisfaction of
such records, instruments, certificates and other documents as we have deemed
necessary for the purposes of the opinions expressed herein. In such
examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
to the originals of all documents submitted to us as certified or photostatic
copies. We have also considered such questions of law as we have deemed
relevant and necessary as a basis for the opinions hereinafter expressed.
As to questions of fact material to the opinions expressed herein, we have
relied upon a certificate (the "Officer's Certificate") of a Responsible
Officer of Chrysler Credit dated the date hereof, a copy of which is annexed
hereto. While we have not independently confirmed the factual matters referred
to in the Officer's Certificate, the lawyers of this firm directly involved in
the preparation and negotiation of the Documents, the transactions
contemplated thereby and this opinion (the "Primary Lawyer Group") are not
aware of any facts which would give them reason to believe that any of the
factual matters referred to therein are incorrect.
The opinions expressed herein are subject to the following qualifications
and assumptions:
(a) the enforcement of the Documents or any judgment arising out of or in
connection therewith, may be limited by bankruptcy, insolvency,
winding-up, reorganization, moratorium or other laws (including the
Personal Property Security Act (Ontario)) affecting creditors' rights
generally;
(b) the enforcement of the Documents may be limited by general principles
of equity, and no opinion is given as to any specific remedy that may
be granted, imposed or rendered (including equitable remedies such as
specific performance and injunction);
(c) the Currency Act (Canada) precludes a court in Canada from awarding a
judgment for an amount expressed in any currency other than Canadian
dollars;
(d) (A) the ability to recover or claim for costs or expenses; and (B)
any provision in the Purchase Agreement purporting to sever from the
Purchase Agreement any provision which is prohibited or unenforceable
under applicable law, are subject to judicial discretion;
(e) any requirement to pay interest at a greater rate after than before
default may not be enforceable if the same is construed by a court to
constitute a penalty;
(f) the enforceability as against the relevant Obligors of the sale of
the Related Secured Loan Rights to the Purchaser pursuant to the
Documents is subject to the requirements of section 53 of the
Conveyancing and Law of Property Act (Ontario), providing that the
assignment effected thereby shall not be effectual in law until
notice in writing thereof has been given to the applicable Obligors;
(g) each of the Purchaser and Chrysler Financial has duly authorized,
executed and delivered the Documents to which they are a party, and
the Documents constitute valid and binding obligations enforceable
against the Purchaser in accordance with their terms; and
(h) we express no opinion as to the enforceability of section 3.2 of the
Purchase Agreement (i) as it relates to the right of the Purchaser to
replace the Seller as Collector solely by reason that the Seller is
insolvent or that a notice of intention or a proposal has been filed
in respect of the Seller pursuant to the Bankruptcy and Insolvency
Act, and (ii) in the face of any applicable order made by a court of
competent jurisdiction pursuant to the Companies' Creditors
Arrangement Act.
We are qualified to practice law in the Province of Ontario and
accordingly do not express any opinion with respect to laws other than those
of such Province and the federal laws of Canada applicable therein.
Based upon and subject to the foregoing, it is our opinion that:
1. The Seller is a corporation existing under the laws of Canada and has full
corporate power and authority to enter into the Documents and to perform its
obligations thereunder.
2. The Documents and any Related Documents (a) to which the Seller is a party
have been duly authorized, executed and delivered by the Seller and constitute
valid and binding obligations of the Seller enforceable against the Seller in
accordance with their respective terms; and (b) to which Chrysler Financial is
a party (other than Hedging Agreements) constitute valid and binding
obligations of Chrysler Financial enforceable against Chrysler Financial in
accordance with their respective terms.
3. The execution, delivery and performance by the Seller of the Documents will
not (i) contravene or constitute a default under the articles or by-laws of
the Seller, (ii) contravene any law or regulation of the Province of Ontario
or any law or regulation of Canada applicable therein, or (iii) contravene or
constitute a default under any material agreement to which the Seller is a
party of which the Primary Lawyer Group is aware.
4. No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or other person is
required to be obtained or made by the Seller for the due execution, delivery
and performance by the Seller of the Documents, except for such authorizations
or approvals that have already been obtained and such notices or filings that
have already been given.
5. No transaction contemplated by any of the Documents requires compliance
with any bulk sales or similar legislation requiring public notice or
recording of a transfer of assets of the Seller in the Province of Ontario.
This opinion may be relied upon by the addressees hereof only in
connection with the transactions contemplated by the Documents but except to
that extent, this opinion may not be used or relied upon by said addressees or
any other person for any purpose whatsoever without in each instance our prior
written consent.
Yours truly,
Exhibit 4.1(a)(17)-2 - Form of Opinion of Chrysler Financial's General Counsel
[LETTERHEAD OF CHRYSLER FINANCIAL CORPORATION]
July 27, 1995
TO: Those Persons Listed On Schedule A
Attached Hereto
Dear Sirs:
Re: Master Receivables Purchase Agreement made as of
July 24, 1995 among Chrysler Credit Canada Ltd.,
Pure Trust and Chrysler Financial Corporation;
Terms Schedule dated July 24, 1995
_____________________________________________________
I am Vice President and General Counsel of Chrysler Financial Corporation,
a Michigan corporation ("Chrysler Financial"), and have acted as such in
connection with the master receivables purchase agreement made as of July 24,
1995 (the "Purchase Agreement") among Chrysler Credit Canada Ltd. ("Chrysler
Credit"), Pure Trust (the "Purchaser") and Chrysler Financial, the terms
schedule dated July 24, 1995 (the "Terms Schedule") made among the same
parties and the master agreement and schedule thereto dated as of July 27,
1995 (the "Master Agreement") made between the Purchaser and Chrysler
Financial, as supplemented by the confirmation dated July 27, 1995 (the
"Confirmation") made between the same parties (the Purchase Agreement, the
Terms Schedule, the Master Agreement and the Confirmation being collectively
referred to as the "Documents").
In this connection, I or members of my staff under my supervision have
participated in the preparation of the Documents and have supervised all legal
proceedings on the part of Chrysler Financial relative thereto. I or members
of my staff under my supervision have also examined such other documents,
corporate records and certificates of government officials and have made such
searches and investigations and considered such questions of law as I have
considered necessary or advisable for the purposes of the opinions hereinafter
expressed.
For purposes of the opinions expressed herein, I have assumed the legal
capacity of all individuals, the authenticity of all documents submitted to us
as originals, the conformity to originals of all documents submitted to us as
certified or photostatic copies or facsimiles thereof and the authenticity of
the originals of such certified or photostatic copies or facsimiles.
This opinion is furnished to you pursuant to Section 4.1(a)(15) of the
Purchase Agreement. Terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings ascribed to them
respectively in the Purchase Agreement.
Based upon and subject to the foregoing, I am of the opinion that:
1. Chrysler Financial is a corporation existing under the laws of the
State of Michigan, and has full power, authority and legal right to
execute and deliver the Documents and to perform its obligations
thereunder.
2. The execution, delivery and performance by Chrysler Financial of
the Documents does not and will not violate, result in a breach of,
or constitute a default under (i) any statute, regulation, rule or
other law applicable to Chrysler Financial, (ii) any order, judgment,
award, injunction or decree of any court, arbitrator or similar
tribunal or governmental authority which is binding upon Chrysler
Financial or its property and assets, (iii) any provision of the
Restated Articles of Incorporation or By-Laws of Chrysler Financial
or any contract, agreement or other instrument to which Chrysler
Financial is a party or by which it or any of its property and assets
is bound; and such execution, delivery and performance do not and
will not result in or require the creation or imposition of any lien,
security interest, or other charge or encumbrance upon any of such
property or assets.
3. No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or other
person is required to be obtained or made by Chrysler Financial for
the due execution, delivery and performance by Chrysler Financial of
the Documents.
4. The Documents and any Related Documents to which Chrysler Financial
is a party have been duly authorized, executed and delivered by
Chrysler Financial.
I am a member of the State Bar of Michigan and the foregoing opinion
may not be taken as extending to matters arising under laws other than the
laws of the State of Michigan and the federal laws of the United States of
America.
This opinion may be relied upon by you only in connection with the
transactions contemplated by the Purchase Agreement and the Terms Schedule,
but except to that extent, this opinion may not be used or relied upon by you
or any other person for any purpose whatsoever without in each instance my
prior written consent.
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and
General Counsel
Exhibit 4.2(a)(5) - Form of Opinion of Purchaser's Counsel
[LETTERHEAD OF ▇▇▇▇▇▇▇▇ BINCH]
July 27, 1995
Chrysler Credit Canada Ltd.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ 8268
Dear Sirs:
Re: Pure Trust purchase from Chrysler Credit Canada Ltd.
We have acted as counsel to The Royal Trust Company ("Royal Trust")
in its capacity as trustee of Pure Trust (in such capacity, the "Issuer
Trustee"), a trust established under the laws of the Province of Ontario, in
connection with (i) the establishment of the program of Pure Trust to issue
and sell from time to time secured short-term promissory notes and to purchase
receivables and related assets with the proceeds of such issue and sale (the
"Program") and (ii) the purchase of certain receivables under the Program by
the Issuer Trustee (in such capacity, the "Purchaser") from Chrysler Credit
Canada Ltd. (the "Seller") under a master receivables purchase agreement made
as of July 24, 1995 (the "Master Agreement") between the Purchaser, the Seller
and Chrysler Financial Corporation ("Chrysler Financial"). Capitalized terms
used in this letter and not otherwise defined have the meanings given to them
in the Master Agreement.
Scope of Investigations
We have examined executed originals or copies, certified or otherwise
identified to our satisfaction, of such public and other records, certificates
and documents as we have considered necessary or appropriate to give this
opinion including:
(a) the declaration of trust dated December 16, 1994 made by the Issuer
Trustee establishing Pure Trust (the "Declaration of Trust");
(b) a certificate (the "Royal Trust Certificate") of an officer of Royal
Trust dated ______, with respect to:
(i) the constating documents and by-laws of Royal Trust;
(ii) the incumbency of signing officers of Royal Trust and
specimen signatures;
(iii) administrative resolutions of Royal Trust; and
(iv) certain factual matters;
(c) the Master Agreement;
(d) the terms schedule dated ______, (the "Terms Schedule") between the
Seller, Chrysler Financial and the Purchaser relating to the
Purchased Assets described therein; and
(e) the assignment dated ______ (the "Assignment") between the Seller and
the Purchaser relating to the Purchased Assets described therein.
The Master Agreement, the Terms Schedule and the Assignment are
collectively referred to as the "Documents". For greater certainty, where any
reference is made in this opinion to an act to be performed by or for or on
behalf of Pure Trust or the Purchaser, such reference shall be construed and
applied for all purposes as if it referred to an act to be performed by the
Issuer Trustee for and on behalf of and in its capacity as trustee of Pure
Trust, and, where any reference is made in this opinion to an act to be
performed by or for or on behalf of the Issuer Trustee, such reference shall
be construed and applied for all purposes as if it referred to an act to be
performed by or for or on behalf of the Issuer Trustee in its capacity as
trustee of Pure Trust.
Assumptions
We have assumed:
(a) the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as certified or
photostatic copies or facsimiles thereof;
(b) the accuracy, currency, truth and completeness of the indices and
filing systems and other public records maintained by public offices
where we searched or enquired or have caused searches or enquiries to
be made and of the information and advice provided to us by
appropriate governmental, regulatory or other like authorities with
respect to those matters referred to herein; and
(c) that the Documents will, when duly authorized, executed and delivered
by the parties thereto other than the Issuer Trustee, constitute
legal, valid and binding obligations of such other parties
enforceable against them in accordance with their terms.
For the purpose of the opinions set out in paragraphs 1 and 2, we
have relied solely on a Certificate of Confirmation dated July 24, 1995 issued
by the Office of the Superintendent of Financial Institutions and a
Certificate of Registration dated July 24, 1995 issued by the Loan and Trust
Corporations Branch. To the extent that the opinions expressed in paragraphs 1
and 2 below relate to matters governed by laws other than the laws of the
Province of Ontario or the federal laws of Canada applicable therein, we have
relied solely upon opinions dated the date hereof of local counsel in each
applicable jurisdiction as to the laws of each such jurisdiction, copies of
which have also been addressed to you and delivered to you. Except insofar as
we have relied on such opinions of local counsel (each a "Local Opinion"), the
opinions herein are based on the laws of the Province of Ontario and the
federal laws of Canada applicable therein ("Ontario Law"), in each case as in
effect as of the date hereof. To the extent that any Local Opinion is stated
to be based on any assumption, to be subject to any qualification or to be
given in reliance on any other document, the opinions expressed herein in
reliance on such Local Opinion are based upon the same assumption, subject to
the same qualification and given in reliance on the same document. The
Provinces of Canada are referred to herein as the "Applicable Jurisdictions".
Qualifications
This opinion is subject to the following qualifications:
(a) our opinion in paragraph 7 as to the enforceability of the Documents
may be limited by (i) applicable bankruptcy, reorganization,
winding-up, insolvency, moratorium and other laws of general
application limiting the enforcement of creditors' rights, (ii) the
fact that the granting of equitable remedies such as specific
performance and injunctions is within the discretion of a court of
competent jurisdiction and (iii) general principles of equity;
(b) a court may require the discretionary powers expressed to be
conferred on any party to a Document to be exercised reasonably and
in good faith notwithstanding any provision to the contrary and may
decline to accept as conclusive factual or legal determinations
described as conclusive therein;
(c) the effectiveness of terms exculpating a party from a liability
or duty otherwise owed by it to another may be limited by law;
(d) the awarding of costs is in the discretion of a court of competent
jurisdiction;
(e) any opinion or statement with respect to the existence or absence of
facts "to the best of our knowledge" means actual knowledge of those
lawyers of our firm involved with the preparation of the Documents
without any independent investigation or inquiry;
(f) any provision in any Document which purports to sever from the
Document any provision therein which is prohibited or unenforceable
under applicable law without affecting the validity of the remainder
of the Document would be enforced only to the extent that the court
determined that such prohibited or unenforceable provision could be
severed without impairing the interpretation and application of the
remainder of the Document;
Based upon and subject to the foregoing, we are of the opinion that:
1. Status of Royal Trust. Royal Trust is a corporation duly
incorporated and organized under the laws of Canada and is authorized to carry
on the business of a trust company as defined in the Trust and Loan Companies
Act (Canada) in each of the Applicable Jurisdictions.
2. Registrations, etc. of Royal Trust. All registrations, filings and
notices necessary to permit Royal Trust to carry on business as a trustee in
each of the Applicable Jurisdictions have been duly made or given.
3. Trust Business. The obligation of Royal Trust to carry out the
activities of Pure Trust as set out under the Declaration of Trust and the
Documents constitutes the business of a trustee.
4. Status of Pure Trust. Pure Trust has been duly established as a
trust under the Declaration of Trust and is a valid and subsisting trust under
Ontario Law.
5. Power and Capacity of Issuer Trustee. The Issuer Trustee has the
power and capacity under the Declaration of Trust to hold title to the
property and assets of Pure Trust, to carry on the activities of Pure Trust in
accordance with the Declaration of Trust and to execute and deliver the
Documents to which Pure Trust is a party and to perform its obligations under
such Documents.
6. Necessary Action by Issuer Trustee. All necessary action has been
taken by the Issuer Trustee to authorize the execution and delivery of the
Documents to which it is a party and the performance of its obligations under
such documents.
7. Authorization, Execution, Delivery and Enforceability. The Issuer
Trustee has duly authorized, executed and delivered the Documents for and on
behalf of Pure Trust. Each of the Documents constitutes a legal, valid and
binding obligation of Pure Trust enforceable against Pure Trust in accordance
with its terms.
8. Contravention, Authorization, Consents, Filings. The execution and
delivery by the Issuer Trustee on behalf of Pure Trust of (i) each of the
Documents and the performance by the Issuer Trustee of its obligations
thereunder:
(a) will not violate, result in the breach of, or constitute a default
under, (1) any provision of applicable laws or regulations, (2) any
of the terms, conditions or provisions of the constating documents or
by-laws of the Issuer Trustee, (3) the Declaration of Trust, (4) to
the best of our knowledge, any agreement, instrument or document to
which the Issuer Trustee is a party or by which it or any of Pure
Trust's properties or assets are bound, or (5) to the best of our
knowledge, any order, judgement or decree of any court arbitrator or
similar tribunal or governmental authority which is binding upon the
Issuer Trustee or any of Pure Trust's properties or assets; or
(b) will not require (1) any authorization, consent or approval or order
of or filing or registration with any court, administrative agency or
other governmental or regulatory body or authority in any of the
Applicable Jurisdictions or under the federal laws of Canada
applicable therein other than such authorizations, consents or
approvals, orders, filing or registrations as have already been
obtained or made, or (2) to the best of our knowledge, any consent or
approval of any person under any agreement, instrument or document to
which the Issuer Trustee is a party or by which it or any of Pure
Trust's properties or assets are bound.
This opinion is rendered solely for your benefit in connection with
the transactions referred to herein and may not be relied upon for any other
purpose, nor may it be delivered to or relied upon by any other person, firm
or corporation without our prior written consent.
Yours truly,
Exhibit 5.1(p) -- Historical Collection Results
Delinquency Experience ($ in millions)
Year Ended Year Ended Year Ended Year Ended Year Ended
31-Dec-94 31-Dec-93 31-Dec-92 31-Dec-91 31-Dec-90
Total Portfolio 1.001 1,260 1,345 1,399 1,591
($)
Period of
Delinquency 31
to 60 days 5 7 10 13 20
60 days and over 0 0 1 3 3
Total
Delinquencies
as a Percentage 0.50% 0.56% 0.82% 1.14% 1.45%
of Portfolio
All amounts are gross (include both interest and principal).
Loss to Liquidation Experience ($ in millions)
Year Ended Year Ended Year Ended Year Ended Year Ended
31-Dec-94 31-Dec-93 31-Dec-92 31-Dec-91 31-Dec-90
Average Portfolio 1,132 1,327 1,386 1,445 1,621
($)
Average Contracts 109.511 128,089 137,042 141,455 145,331
(#)
Repossessions
as a Percentage
of Average
Contracts 0.97% 1.10% 1.57% 2.05% 1.87%
Net Losses as a
Percentage of
Liquidations 0.27% 0.42% 0.90% 1.37% 1.23%
Net Losses as a
Percentage of
Average Portfolio 0.17% 0.27% 0.57% 0.84% 0.65%
