EXHIBIT 10.TTTT
RECEIVABLES SALE AGREEMENT
among
PREMIER RECEIVABLES L.L.C.
as Seller,
CHRYSLER FINANCIAL CORPORATION
as Servicer,
PARK AVENUE RECEIVABLES CORPORATION
as Purchaser
and
THE CHASE MANHATTAN BANK
as Funding Agent
Dated as of June 16, 1997
i
TABLE OF CONTENTS
Page
ARTICLE I: DEFINITIONS 10
ARTICLE II: SALE AND PURCHASE
Section 2.1. Sale and Purchase 10
Section 2.2. Purchase Price 10
Section 2.3. Seller's Optional Termination 11
ARTICLE III: FEES AND EXPENSES 11
Section 3.1. Determination of Carrying Costs 11
Section 3.2. Purchase Discount 11
Section 3.3. Carrying Cost True-Up Amount 12
Section 3.4. Program Fee 12
Section 3.5. Servicer Fee 13
Section 3.6. Interest on Unpaid Amounts 13
ARTICLE IV: CONDITIONS PRECEDENT TO PURCHASE 13
Section 4.1. Conditions Precedent to Purchase 13
Section 4.2. Absence of Liens 13
Section 4.3. Financing Statements 13
Section 4.4. Schedule of Contracts 13
Section 4.5. Seller Resolutions 13
Section 4.6. Servicer Resolutions 14
Section 4.7. Legal Opinion of Counsel to the
Seller and the Servicer 14
Section 4.8. Good Standing Certificates 14
Section 4.9. Representations and Covenants 14
Section 4.10. Other Documents 14
Section 4.11. Up-Front Fee 15
ARTICLE V: SETTLEMENT PROCEDURES 15
ii
Section 5.1. Collections 15
Section 5.2. Application of Collections 15
Section 5.3. Application of Collections on
Settlement Dates 15
Section 5.4. Servicer Report 15
ARTICLE VI: SERVICING OF RECEIVABLES 15
Section 6.1. Appointment and Duties of the Servicer 16
Section 6.2. Replacement of the Servicer 16
Section 6.3. Custody of Receivable Files 17
Section 6.4. Duties of the Servicer as Custodian 17
Section 6.5. Effective Period and Termination 18
ARTICLE VII: REPRESENTATIONS AND WARRANTIES 18
Section 7.1. Representations and Warranties of
the Seller and the Servicer 18
Section 7.2 Repurchase by Servicer Upon Breach 20
ARTICLE VIII: COVENANTS 21
Section 8.1. Affirmative Covenants of the Seller
and the Servicer 21
Section 8.2. Reporting Requirements of the Servicer 21
Section 8.3. Negative Covenants of the Seller and
the Servicer 22
Section 8.4. Protection of the Purchaser's Interest 22
ARTICLE IX: FUNDING AGENT 23
Section 9.1. Appointment of the Funding Agent 23
Section 9.2. Successor Funding Agent 23
ARTICLE X: MISCELLANEOUS 23
Section 10.1. Amendments 23
Section 10.2. Notices 23
Section 10.3. No Waiver; Remedies 23
Section 10.4. Binding Effect; Assignability 24
Section 10.5. Governing Law 24
iii
Section 10.6. Construction of the Agreement 24
Section 10.7. No Proceedings 24
Section 10.8. Confidentiality 24
Section 10.9. Execution in Counterparts 25
SCHEDULES AND EXHIBITS
SCHEDULE I Schedule of Notice Addresses
EXHIBIT A Form of Servicer Report
EXHIBIT B Form of Opinion of Counsel
page i
RECEIVABLES SALE AGREEMENT, dated as of June 16, 1997, among PREMIER
RECEIVABLES L.L.C., a Michigan limited liability company, as the "Seller",
CHRYSLER FINANCIAL CORPORATION, a Michigan corporation, as the initial
"Servicer", PARK AVENUE RECEIVABLES CORPORATION, as purchaser (together with
its successors and assigns in such capacity, the "Purchaser") and THE CHASE
MANHATTAN BANK, as the "Funding Agent" for the Purchaser.
ARTICLE I: DEFINITIONS
"Adverse Claim" means any mortgage, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(consensual, statutory or other), charge, security arrangement, or any other
encumbrance or other right or claim in, of or on any Person's assets or
properties in favor of any other Person, of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic
effect as any of the foregoing).
"Agreement" means this Receivables Sale Agreement, as it may be amended,
supplemented or otherwise modified and in effect from time to time.
"Aggregate Principal Balance" means, at any time, the aggregate
Principal Balance of all Purchased Receivables at such time.
"Amount Financed" means (i) with respect to any Receivable that is not a
Balloon Payment Receivable, the amount advanced under such Receivable toward
the purchase price of the Financed Vehicle and any related costs, exclusive
of any amount allocable to the premium of force-placed physical damage
insurance covering the Financed Vehicle; and (ii) with respect to a Balloon
Payment Receivable, an amount equal to the present value of the fixed level
payment monthly installments (not including the amount designated as the
Balloon Payment) under the Balloon Payment Receivable, assuming that each
payment is made on the due date in the month in which such payment is due,
discounted at the APR for such Balloon Payment Receivable.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate
of finance charges stated in the related Contract.
"APA Bank" means The Chase Manhattan Bank, and its successors and assigns.
"Asset Purchase Facility" means the asset purchase facility available to
the Purchaser to support, among other things, payments in respect of the
Purchaser's commercial paper notes.
page 2
"Balloon Payment" means, for any Receivable, the dollar amount of any
payment which is not a level monthly payment (other than the first or last
payment made on the Receivable which is minimally different from the other
level payments).
"Balloon Payment Receivable" means any Contract listed on the Schedule
of Contracts that provides for amortization of the loan over a series of
fixed level payment monthly installments in accordance with the actuarial
method, the simple interest method or the Rule of 78s, but also requires a
final payment that is greater than the scheduled monthly payments and is due
after payment of such scheduled monthly payments and that may be made by (i)
payment in full in cash of a Balloon Payment, (ii) return of the Financed
Vehicle to the Servicer provided certain conditions are satisfied or (iii)
refinancing the Balloon Payment in accordance with certain conditions.
"Business Day" means any day other than a day on which banks are not
authorized to be open or required to be closed in New York City.
"Carrying Costs" means, for each Settlement Period, an amount equal to
the sum of:
(i) (PD + PF) x DSP x AI
---
360
plus
(ii) SF x DP x APB
---
360
where PD = Purchase Discount
PF = Program Fee
DSP = the number of days in such Settlement Period
AI = the average daily Investment for such Settlement Period
SF = Servicer Fee
DP = 30 days, except for the initial Settlement Period
when it shall be the number of days from the Cut-Off
Date to June 30, 1997
APB = the Aggregate Principal Balance on the first day of
such Settlement Period.
page 3
"Carrying Costs True-Up Amount" has the meaning assigned to that term in
Section 3.3.
"Certificate of Title" means any certificate, instrument or other
document issued by a state or other governmental authority in respect of any
motor vehicle for the purpose of evidencing the ownership of, or any Adverse
Claim in or against, such motor vehicle.
"CFC" means Chrysler Financial Corporation, a Michigan corporation.
"Collection" means any amount paid by an Obligor or any other party with
respect to a Purchased Receivable, including Liquidation Proceeds.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices, or other writings pursuant to which such
Receivable arises or which evidence such Receivable.
"Credit and Collection Policy" means the credit and collection policies
and practices of the Servicer and any successor Servicer relating to
Receivables and Contracts, such policies being subject to unilateral revision
or modification at any time by the Servicer or successor Servicer.
"Cut-Off Date" means June 10, 1997.
"Dealer" means an automobile or light-duty truck dealership located
within the United States at or through which a Financed Vehicle shall have
been purchased or is proposed to be purchased.
"Delinquency Ratio" means, as of the last calendar day of any Settlement
Period, a fraction, expressed as a percentage, the numerator of which is the
sum of the Principal Balances of all Receivables which were Delinquent
Receivables as of the last calendar day of such Settlement Period and the
last calendar day of each of the two immediately preceding Settlement
Periods, to the extent such preceding Settlement Periods exist, and the
denominator of which is the sum of the Aggregate Principal Balance on such
last calendar day of such Settlement Period and on the last calendar day of
each of the two immediately preceding Settlement Periods, to the extent such
preceding Settlement Periods exist.
"Delinquent Receivable" means any Receivable which has 10% or more of a
scheduled payment past due for more than 60 days.
"Eligible Receivable" means, as of the Cut-Off Date, any Receivable:
page 4
(i) the Obligor of which (a) is a resident of the United
States and (b) is not an affiliate of the originating Dealer or any of
the parties hereto,
(ii) the Obligor of which (a) is not the Obligor of any
Receivable which has 10% or more of a scheduled payment past due for
more than 60 days and (b) is not the subject of any bankruptcy,
insolvency or reorganization proceeding or any other proceeding seeking
the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or any substantial part of its
property,
(iii) which is "chattel paper" within the meaning of Section
9-105 of the UCC of all applicable jurisdictions, and for which there
shall be in existence one, and only one, originally executed copy of
such Receivable,
(iv) which is denominated and payable only in United States
dollars in the United States,
(v) which (a) has been originated in the United States by a
Dealer for the retail sale of a Financed Vehicle in the ordinary course
of such Dealer's business and (b) satisfies all applicable requirements
of the Credit and Collection Policy,
(vi) which arises under a Contract (a) which, together with
such Receivable, is (1) in full force and effect and constitutes the
legal, valid and binding obligation of the related Obligor, enforceable
against such Obligor in accordance with its terms, and (2) subject to
no dispute, offset, counterclaim or other defense, and (b) with respect
to which (1) no default, breach, violation, or event permitting
acceleration under the terms thereof has occurred and (2) there has not
arisen any condition that, with notice or lapse of time or both, would
constitute a default, breach, violation or event permitting
acceleration under the terms thereof,
(vii) which, together with the related Contract, (a) is secured
by a perfected, valid, subsisting and enforceable first priority
security interest in favor of CFC in the related Financed Vehicle, (b)
contains customary and enforceable provisions such that the rights and
remedies of the holder of such security interest are adequate for
realization against the collateral of the benefits of the security, and
(c) was originated and transferred to the Seller without any conduct
constituting fraud or misrepresentation on the part of the applicable
Dealer, CFC or the Seller,
page 5
(viii) which, together with the related Contract, immediately
following the execution of such Contract, was purchased by (and the
originating Dealer has validly assigned all of its right, title and
interest therein to) CFC, which, in turn, has sold such Receivable to
the Seller, and such purchase and assignment of such Receivable, such
Contract and the Related Security to CFC is expressly contemplated in
such Contract,
(ix) which, together with the Contract related thereto, does
not contravene any laws, rules or regulations applicable thereto
(including, without limitation, laws, rules and regulations relating to
usury, truth in lending, fair credit billing, fair credit reporting,
equal credit opportunity, fair debt collection practices and privacy)
and with respect to which no part of the Contract related thereto is in
violation of any such law, rule or regulation,
(x) the Financed Vehicle securing which (a) is free and clear
of any Adverse Claim other than the security interest therein then
being assigned by the Seller to the Funding Agent for the benefit of
the Purchaser, and no enforcement action, whether by repossession or
otherwise, has been taken with respect to such Financed Vehicle, and
(b) is covered by the Required Insurance in respect of such Financed
Vehicle, and such Required Insurance is in full force and effect, and
the proceeds of the Required Insurance has been assigned to the Seller
and such proceeds are fully assignable to the Funding Agent, for the
benefit of the Purchaser,
(xi) as to which the Funding Agent has not notified the Seller
that such Receivable or class of Receivables is not acceptable as an
Eligible Receivable, including, without limitation, because such
Receivable arises under a Contract that is not acceptable,
(xii) with respect to the outstanding balance thereof, (a) the
related Contract requires that payment in full of such outstanding
balance is scheduled to be made not later than sixty (60) months after
the date any interest therein is purportedly transferred to the
Purchaser hereunder and (b) such Outstanding Balance is scheduled to be
paid in equal consecutive monthly installments, unless such Receivable
is a Balloon Payment Receivable,
(xiii) with respect to which the original copy of the related
Contract and all related documents and instruments are held by the
Servicer or an agent of the Servicer,
(xiv) as to which (a) at the time of sale to the Seller by CFC,
no adverse selection procedures were employed by CFC in selecting such
page 6
Receivable from CFC's portfolio of retail installment sale contracts
and (b) on the Cut-Off Date, no adverse selection procedures were
employed by the Seller in selecting such Receivable from the Seller's
portfolio of retail installment sales contracts, and
(xv) which Receivable bears interest at the per annum rate
stated on the face of the related Contract, which per annum rate
remains fixed during the term of such Receivable and accrued interest
on such Receivable is payable monthly, in arrears.
"Finance Charges" means, with respect to any Receivable and its related
Contract, any finance, interest or similar charges owing by an Obligor
pursuant to such Contract, including, without limitation, any charge payable
in connection with any extension or adjustment under such Contract (without
regard to whether any such extension or adjustment is permitted under the
terms of this Agreement).
"Financed Vehicle" means a new or used automobile or light-duty truck,
together with all accessions thereto, securing an Obligor's indebtedness
under the applicable Contract.
"Funding Agent" means The Chase Manhattan Bank, as agent on behalf of
the Purchaser and the APA Bank, or any replacement thereof under Section 9.2.
"Hedging Proceeds" means any amount payable by CFC to the Funding Agent
under a swap confirmation.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in
an involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or
ordering the winding-up or liquidation of such Person's affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (b) the commencement by such Person of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by such Person to the entry of
an order for relief in an involuntary case under any such law, or the consent
by such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
for such Person or for any substantial part of its property, or the making by
such Person of any general assignment for the benefit of creditors, or the
failure by such Person generally to pay its debts as such debts become due,
or the taking of action by such Person in furtherance of any of the
foregoing.
page 7
"Insurance Policy" means (i) any comprehensive and collision, fire,
theft or other insurance policy maintained by an Obligor in which the
Servicer is named as loss payee with respect to one or more Financed
Vehicles, and (ii) any credit, life or disability insurance maintained by an
Obligor in connection with any Contract.
"Investment" means the aggregate amount of cash paid by the Purchaser to
the Seller for the Purchase, less the amount of all Collections received and
applied by the Funding Agent as reductions of Investment pursuant to Article
V.
"Liquidated Receivable" means any Receivable liquidated by the Servicer
through the sale of a Financed Vehicle or otherwise.
"Liquidation Proceeds" means, with respect to any Liquidated Receivable,
the monies collected in respect thereof, from whatever source, net of the sum
of any amounts expended by the Servicer in connection with such liquidation
and any amounts required by law to be remitted to the Obligor on such
Liquidated Receivable.
"Net Loss" for a Settlement Period means the sum of the Aggregate
Principal Balance of all Purchased Receivables which are deemed to be
uncollectible for such Settlement Period, minus any Liquidation Proceeds
received during such Settlement Period, plus any losses resulting from
disposition expenses paid during such Settlement Period.
"Net Loss Ratio" means, as of the last day of any Settlement Period, a
fraction, expressed as a percentage, the numerator of which is the product of
(i) the sum of the Net Loss for such Settlement Period and the two
immediately preceding Settlement Periods, to the extent such Settlement
Periods exist, and (ii) a factor of 12 divided by the number of Settlement
Periods included in the sum in clause (i), and the denominator of which is
the average of the Aggregate Principal Balance on the first day of the
Settlement Period and the first day of the two immediately preceding
Settlement Periods, to the extent such Settlement Periods exist.
"Obligor" means any Person which is obligated to make payment on a
Receivable.
"Person" means any corporation, natural person, firm, joint venture,
partnership, limited liability company, trust, unincorporated organization,
enterprise, government or any department or agency of any government.
"Principal Balance" means with respect to any Receivable the outstanding
principal balance thereof determined in accordance with the Credit and
Collection Policy and the Servicer's customary calculation methods, provided,
that with respect to a Receivable identified as a Balloon Payment Receivable,
the Principal Balance shall not include the Balloon Payment.
page 8
"Program Fee" has the meaning assigned to that term in Section 3.4.
"Purchase" has the meaning assigned to that term in Section 2.1.
"Purchase Amount" means the amount, as of the close of business on the
last day of a Settlement Period, required to prepay in full a Receivable
under the terms thereof including interest to the end of the month of
purchase.
"Purchase Date" means June 16, 1997, the date on which the conditions
precedent to the Purchase described in Section 4.1 have been satisfied or
waived.
"Purchase Discount" has the meaning assigned to that term in Section 3.2.
"Purchased Receivable" means an Eligible Receivable arising under a
Contract listed on the Schedule of Contracts delivered to the Funding Agent
prior to the Purchase Date being sold to Purchaser under this Agreement.
"Purchaser" means Park Avenue Receivables Corporation, a Delaware
corporation, and its successors and assigns.
"Receivable" means the indebtedness and other obligations of an Obligor
arising under a Contract, whether such indebtedness or other obligations
constitute accounts, chattel paper, instruments or general intangibles, and
including, without limitation, the obligation to pay any Finance Charges with
respect thereto.
"Receivables Files" means the documents specified in Section 6.3.
"Related Security" means, with respect to any Receivable:
(i) all of the Seller's interest in the Financed Vehicle, the
financing of the purchase of which gave rise to such Receivable,
including, without limitation, all of the Seller's right, title and
interest in and to the proceeds of the Insurance Policies, and all
warranties, indemnities, service obligations and other contract rights
issued or granted by, or otherwise existing under applicable law
against, the manufacturer or Dealer in respect of such Financed Vehicle,
(ii) all other security interests or liens and property subject
thereto from time to time, if any, purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable,
or otherwise, together with all financing statements signed by an
Obligor describing any collateral securing such Receivable, and
including, without limitation, all
page 9
security interests or liens, and property subject thereto, granted by
any Person (whether or not the primary Obligor on such Receivable) under
or in connection therewith,
(iii) all books, records and other information relating to such
Receivable, including, without limitation, all Contracts,
(iv) all service contracts and other contracts and agreements
relating to such Receivable, and
(v) all proceeds of any of the foregoing.
"Required Insurance" means an Insurance Policy with respect to a
Financed Vehicle (i) that has been issued to the Obligor by an insurance
company acceptable to the Servicer, (ii) that provides comprehensive,
collision, fire, theft and other physical damage coverage, (iii) that is in
an amount not less than the market value of the applicable Financed Vehicle,
and (iv) that has the Servicer noted as the loss payee thereon.
"Reserve" means an amount equal to 5.25% of the Investment as of the
Purchase Date.
"Sale Documents" means this Agreement, the Exhibits hereto to which the
Seller is a party and all other certificates, instruments, agreements and
documents executed from time to time by the Seller in connection with the
transactions contemplated in this Agreement.
"Schedule of Contracts" means the list of Contracts delivered to the
Funding Agent, such list being in microfiche, paper or electronic format.
"Seller" means Premier Receivables L.L.C., a Michigan limited liability
company, and its successors and permitted assigns.
"Servicer" means CFC or any replacement thereof under Article VI.
"Servicer Default" has the meaning assigned to that term in Section 6.2.
"Servicer Fee" has the meaning assigned to the term in Section 3.5.
"Servicer Report" means the report in the form of Exhibit A hereto to be
provided by the Servicer in accordance with Section 5.4 of this Agreement,
which report shall include a calculation of the Delinquency Ratio and the Net
Loss Ratio for the applicable month.
page 10
"Settlement Date" means the 20th day of each month following
each Settlement Period, or if such day is not a Business Day, the next
succeeding Business Day.
"Settlement Period" means a calendar month, provided, that, for purposes
of the initial Settlement Period, such period shall commence as of the
Cut-Off Date and end on June 30, 1997.
"Simple Interest Method" means the method of allocating a fixed level
payment to principal and interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the product of (a) the
fixed rate of interest, (b) the unpaid principal balance, and (c) a fraction,
the numerator of which is the number of days elapsed since the preceding
payment of interest was made and the denominator of which is 365, and the
remainder of such payment is allocable to principal.
"Up-front Fee" has the meaning assigned to that term in Section 4.11.
ARTICLE II: SALE AND PURCHASE
SECTION 2.1. Sale and Purchase. Upon the terms and subject to the
conditions set forth herein, effective as of the Purchase Date, (i) the
Seller hereby sells, transfers and assigns to the Purchaser all of the
Seller's right, title and interest to and in the Purchased Receivables,
together with the Related Security and Collections from and after the Cut-Off
Date relating to such Purchased Receivables and (ii) the Purchaser hereby
purchases and accepts the transfer and assignment of all of the Seller's
right, title and interest to and in the Purchased Receivables, together with
the Related Security and Collections relating to such Purchased Receivables
(the foregoing sale, transfer and assignment being referred to as the
"Purchase") and (iii) the Purchaser hereby, without any further action
hereunder, does sell, transfer, assign, set over and otherwise convey to the
Seller, effective as of the Purchase Date, without recourse, representation
or warranty of any kind, all right, title and interest of the Purchaser in
and to the Balloon Payments, all monies due and to become due and all amounts
received with respect thereto and all proceeds thereof.
SECTION 2.2. Purchase Price. The purchase price payable by the Purchaser
for the Purchase shall equal the Aggregate Principal Balance as of the
Cut-Off Date. Such purchase price shall be comprised of a cash component and
a deferred payment component. The cash component of the purchase price shall
be paid by the Purchaser to the Seller on the Purchase Date and shall equal
the Aggregate Principal Balance of the Purchased Receivables as of the
Cut-Off Date minus the Reserve calculated as of such Purchase Date. Upon and
after the reduction of the Investment to zero and the payment in full of all
other amounts due to the Purchaser hereunder, all Collections or other cash
received by the Purchaser on account of Receivables and the interest of the
Purchaser therein and all Receivables held by or on behalf
page 11
of the Purchaser will be transmitted in the form received by the Purchaser to
the Seller. The transmission of such amount by the Purchaser shall be deemed
to satisfy the payment of the deferred payment component of the purchase
price under this Section 2.2.
SECTION 2.3. Seller's Optional Termination. The Seller shall have the
right, on five (5) Business Days' written notice to the Funding Agent, at any
time following the reduction of the Aggregate Principal Balance hereunder to
a level that is less than ten percent (10%) of the Aggregate Principal
Balance on the Purchase Date, to repurchase from the Purchaser all, and not
part, of the then outstanding Purchased Receivables, together with the
Related Security and Collections relating to such Purchased Receivables. The
purchase price in respect thereof shall be an amount equal to the Investment
outstanding at such time plus all other amounts payable (whether due or
accrued) hereunder or under any other Sale Document to the Purchaser or the
Funding Agent at such time. Such repurchase shall be without representation,
warranty or recourse of any kind by, on the part of or against the Purchaser,
the APA Bank or the Funding Agent.
ARTICLE III: FEES AND EXPENSES
SECTION 3.1. Determination of Carrying Costs. The following items as
outlined in Section 3.2 through Section 3.6 shall be utilized in calculating
the amount of Carrying Costs to be distributed each Settlement Period out of
Collections of Purchased Receivables.
SECTION 3.2. Purchase Discount. A Purchase Discount equal to the
weighted average of the following:
(a) the weighted average of the discount rates on all commercial
paper notes issued at a discount and outstanding during the related
Settlement Period (other than commercial paper notes the proceeds of which
are used by the Purchaser to (x) purchase receivables, or extend financing
secured thereby, at a fixed interest rate or (y) conduct any arbitrage
activities of the Purchaser), converted to an annual yield-equivalent rate
on the basis of a 360-day year;
(b) the weighted average of the annual interest rates payable on
all interest-bearing commercial paper notes outstanding during the related
Settlement Period (other than the commercial paper notes described in
clauses (x) and (y) of paragraph (i) above), on the basis of a 360-day
year; and
(c) the weighted average of the annual interest rates applicable to
any of the Purchaser's liquidity facilities under which the Purchaser has
borrowed loans or otherwise obtained funds during the related Settlement
Period (which loans shall be borrowed or funds otherwise obtained only
after a determination by the Purchaser that financing its
page 12
activities during such period by issuing commercial paper notes would not
be practicable or cost-efficient);
provided that, to the extent that the Investment is funded by a specific
issuance of commercial paper notes and/or by a specific borrowing under the
Asset Purchase Facility, the Purchase Discount shall equal the rate or
weighted average of the rates applicable to such issuance or borrowing,
provided, further, that, for purposes of the foregoing, the interest rates
applicable under the Asset Purchase Facility shall not exceed the reserve
adjusted "LIBO Rate" quoted by the Funding Agent plus 0.225% per annum.
SECTION 3.3. Carrying Cost True-Up Amount. Two Business Days prior to
the end of each Settlement Period, the Funding Agent shall determine the
Purchase Discount pursuant to (a) above by using the actual Purchase Discount
for each day elapsed in such month and estimating the Purchase Discount for
each remaining day in such month. In addition, the Funding Agent shall
concurrently notify the Servicer of the actual Purchase Discount for any days
during the immediately preceding Settlement Period with respect to which the
Purchase Discount was estimated, and the difference, if any, between the
Carrying Costs actually paid using the estimated Purchase Discount and the
Carrying Costs which would have been paid had the actual Purchase Discount
been available (such differential being the "Carrying Costs True- Up
Amount"). If the amount of Carrying Costs paid for such immediately preceding
Settlement Period based upon an estimated Purchase Discount was less than the
amount of Carrying Costs for such Settlement Period based upon the actual
Purchase Discount, the amount of Collections remitted to the Funding Agent
pursuant to Section 5.3(i) shall be increased by an amount equal to the
Carrying Costs True-Up Amount, or, if the amount of Carrying Costs paid for
such immediately preceding Settlement Period based upon an estimated Purchase
Discount was greater than the amount of Carrying Costs for such Settlement
Period based upon the actual Purchase Discount, the amount of Collections
remitted to the Funding Agent pursuant to Section 5.3(i) shall be decreased
by an amount equal to the Carrying Costs True-Up Amount.
SECTION 3.4. Program Fee. A Program Fee equal to 0.15% per annum which
shall include all annual expenses, including but not limited to legal fees,
audit fees, filing and administrative fees, liquidity and credit enhancement
fees, and dealer commissions.
SECTION 3.5. Servicer Fee. A Servicer Fee in respect of each Settlement
Period, equal to 1.0% per annum (assuming a 30/360 day basis) of the
Principal Balance of Purchased Receivables on the first day of such
Settlement Period, shall be remitted by the Purchaser to the Servicer. If CFC
is acting as the Servicer, then the Servicer shall retain an amount equal to
the Servicer Fee (in full satisfaction of the payment of such fee to the
Servicer) out of amounts required to be remitted by the Servicer in
accordance with Section 5.3.
page 13
SECTION 3.6. Interest on Unpaid Amounts. To the extent that the Seller
or Servicer fails to pay when due to the Purchaser or the Funding Agent any
fee, expense or other amount payable hereunder or under any Sale Document,
interest shall be due and payable on such unpaid amount, for each day until
paid in full, at the rate of 0.50% in excess of the rate of interest per
annum published on such day (or, if not then published, on the most recently
preceding day) in The Wall Street Journal as the "Prime Rate". Changes in the
rate payable hereunder shall be effective on each date on which a change in
the "Prime Rate" is so published.
ARTICLE IV: CONDITIONS PRECEDENT TO PURCHASE
SECTION 4.1. Conditions Precedent to Purchase. The following conditions
as outlined in Section 4.2 through Section 4.11 must be satisfied before the
Purchaser will make the Purchase:
SECTION 4.2. Absence of Liens. The Seller shall certify that all
Purchased Receivables, Related Security and all proceeds thereof are free and
clear of any Adverse Claim.
SECTION 4.3. Financing Statements. The Funding Agent will have received
acknowledgment copies of UCC-1 financing statements, and all other documents
reasonably requested by the Funding Agent, to evidence the perfection of the
interest of the Funding Agent on behalf of the Purchaser and the APA Bank in
and to the Purchased Receivables, the Related Security and the Collections.
SECTION 4.4. Schedule of Contracts. The Funding Agent will have
received the Schedule of Contracts.
SECTION 4.5. Seller Resolutions. The Funding Agent will have received a
certificate of the Seller attesting to:
(a) the resolutions of the majority interest of the Seller's members
authorizing the execution by the Seller of the Sale Documents to be
executed by the Seller;
(b) the names and signatures of the officers of the Seller's members
authorized to execute the Sale Documents to be executed by the Seller; and
(c) the completeness and correctness of the attached articles of
organization and operating agreement of the Seller.
page 14
SECTION 4.6. Servicer Resolutions. The Funding Agent will have received
a certificate of the Servicer's Secretary or Assistant Secretary attesting
to:
(a) the resolutions of the Servicer's Board of Directors (or an
executive committee thereof) authorizing the execution by the Servicer of
the Sale Documents to be executed by the Servicer;
(b) the names and signatures of the officers of the Servicer authorized
to execute the Sale Documents to be executed by the Servicer; and
(c) the completeness and correctness of the attached restated articles
of incorporation and by-laws of the Servicer.
SECTION 4.7. Legal Opinion of Counsel to the Seller and the Servicer.
The Funding Agent will have received an opinion from counsel to the Seller
and the Servicer, such counsel being "in-house" counsel unless otherwise
required by any agencies providing a credit rating to the transaction
contemplated hereby, substantially in the form attached hereto as Exhibit B,
together with such other matters as the Funding Agent or the Purchaser may
reasonably request.
SECTION 4.8. Good Standing Certificates. The Funding Agent will have
received certificates of recent date issued by the Secretary of State of the
State of Michigan, as to the legal existence and good standing of the Seller
and the Servicer.
SECTION 4.9. Representations and Covenants. On and as of the Purchase
Date (i) the representations and warranties of the Seller and the Servicer in
Article VII shall be true and correct with the same effect as if made on such
date and (ii) the Seller and the Servicer shall be in compliance with the
covenants set forth in Article VIII. The Seller and the Servicer, by
accepting the proceeds of such Purchase, shall be deemed to have certified as
to the truth and accuracy of each of the matters described in the foregoing
clauses (i) and (ii), both before and after giving effect to such Purchase.
SECTION 4.10. Other Documents. The Funding Agent and the Purchaser will
have received all other documents that either of them had reasonably
requested from the Seller or the Servicer.
SECTION 4.11. Up-Front Fee. The Seller shall have paid a fee to the
Funding Agent at Closing in the amount of $150,000 which shall include all
up-front expenses, including but not limited to legal fees, filing and
administrative fees, rating agency fees, liquidity and credit enhancement
fees incurred with respect to the Purchase.
page 15
ARTICLE V: SETTLEMENT PROCEDURES
SECTION 5.1. Collections. The Servicer shall remit Collections with
respect to each Settlement Period to the Funding Agent on the Settlement Date
relating to such Settlement Period.
SECTION 5.2. Application of Collections. All Collections for the
Settlement Period shall be applied by the Servicer as follows:
(a) with respect to each payment by or on behalf of the Obligor
shall be applied to interest and principal in accordance with the Simple
Interest Method with excess payments applied to principal; and
(b) all Liquidation Proceeds with respect to any Balloon Payment
Receivable shall be applied first to the related Receivable and only after
the payment in full of the Principal Balance thereof plus accrued but
unpaid interest thereon shall any such Liquidation Proceeds be applied to,
or constitute, the related Balloon Payment.
SECTION 5.3. Application of Collections on Settlement Dates. The
Servicer will, by 3:00 P.M. (New York time) on each Settlement Date, from
Collections received during the preceding Settlement Period, pay to the
Funding Agent and the Funding Agent shall distribute such Collections,
together with any Hedging Proceeds received by the Funding Agent with respect
to such Settlement Period, to the Purchaser (i) first, an amount equal to the
Carrying Costs for the Settlement Period (as such amount shall be increased
or decreased by the Carrying Costs True-Up Amount, if any, for the
immediately preceding Settlement Period as determined pursuant to Section
3.3) and (ii) second, all remaining Collections as a reduction to the
Investment.
SECTION 5.4. Servicer Report. The Servicer will provide the Purchaser,
either in writing or electronically, with a Servicer Report with respect to
each Settlement Period no later than 15 days following the end of such
Settlement Period (or, if such 15th day is not a Business Day, the next
succeeding Business Day).
ARTICLE VI: SERVICING OF RECEIVABLES
SECTION 6.1. Appointment and Duties of the Servicer. The Purchaser and
the Seller each hereby appoint CFC as the Servicer and CFC accepts such
appointment. The Servicer, for the benefit of the Purchaser (to the extent
provided herein), shall manage, service, administer, make collections and
discharge liens on the Purchased Receivables with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to all
comparable automotive receivables that it services for itself or others. If
the
page 16
Servicer shall commence a legal proceeding to enforce a Purchased Receivable,
the Purchaser shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection, such Purchased Receivables to the
Servicer. If in any enforcement suit or legal proceeding it shall be held
that the Servicer may not enforce a Purchased Receivable on the ground that
it shall not be a real party in interest or a holder entitled to enforce such
Purchased Receivable, the Funding Agent shall, at the Servicer's expense and
direction, take steps to enforce such Receivable, including bringing suit in
its name or the name of the Purchaser. The Funding Agent, on behalf of the
Purchaser and the APA Bank, shall upon the written request of the Servicer
furnish the Servicer with any powers of attorney and other documents
reasonably necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder.
SECTION 6.2. Replacement of the Servicer. (a) If any of the following
events, a Servicer Default, shall occur and be continuing:
(i) any failure by the Servicer to make any payment or deposit
required to be made hereunder and the continuance of such failure for a
period of five Business Days;
(ii) any representation or warranty made by the Servicer in
Section 7.1, or any information set forth in a Servicer Report or other
certificate delivered to the Funding Agent, shall prove to have been
incorrect in any material respect when made, which continues to be
incorrect in any material respect for a period of sixty days after the
earlier of the date on which an officer of the Servicer has actual
knowledge thereof and the date on which written notice thereof has been
given to the Servicer requiring the same to be remedied, by the
Purchaser or the Funding Agent;
(iii) failure on the part of the Servicer to observe or perform
in any material respect any other term, covenant or agreement in this
Agreement or any other Sale Document or in any hedging arrangement
between the Funding Agent and the Servicer which continues unremedied
for sixty days after the earlier of the date on which an officer of the
Servicer has actual knowledge of such failure and the date on which
written notice of such failure has been given to the Servicer requiring
the same to be remedied, by the Purchaser or the Funding Agent; or
(iv) an Insolvency Event with respect to the Seller or the
Servicer,
then, so long as such Servicer Default shall not have been remedied, the
Purchaser shall have the right to remove CFC (or any successor Servicer) as
Servicer by giving written notice thereof to the Servicer. On and after
receipt of such written notice, all authority and power
page 17
of the Servicer under this Agreement shall, without further action, pass to
and be vested in such successor Servicer as may be appointed by the Funding
Agent on behalf of the Purchaser and the APA Bank, provided, however, that
Servicer cannot be removed until a successor Servicer is selected and
appointed and such successor Servicer meets industry-wide standards for being
a Servicer of retail automotive receivables.
(b) If CFC is removed as Servicer, CFC shall transfer to any
successor Servicer designated by the Funding Agent all records,
correspondence and documents requested by the Funding Agent or such
successor Servicer and permit such Persons to have access to, and to copy,
all software used by the Servicer in the collection, administration or
monitoring of the Purchased Receivables. In the case of software that is
then licensed by, or otherwise made available to, the Servicer from or by
any third party, the Servicer shall use its best efforts to obtain such
consents and otherwise take all actions necessary in order to enable any
Servicer hereunder to succeed to all rights of CFC to the quiet use and
enjoyment of such software for the purpose of discharging the obligations
of the Servicer under or in connection with the Sale Documents.
(c) Following the removal of CFC as Servicer, (i) the Funding
Agent, on behalf of the Purchaser and the APA Bank, may (a) notify Obligors
of the ownership interest of the Purchaser hereunder in the Purchased
Receivables and the Related Security, (b) notify each issuer of an
Insurance Policy of the ownership interest of the Purchaser hereunder in
the Purchased Receivables and in the Related Security (including the
applicable Financed Vehicle and Insurance Policy thereon), and (c) direct
the Seller to, whereupon the Seller immediately shall, note the interest of
the Funding Agent, on behalf of the Purchaser and the APA Bank, hereunder
on each Certificate of Title relating to each Financed Vehicle and (ii) the
Funding Agent, on behalf of the Purchaser and the APA Bank, shall have, in
addition to all other rights and remedies under this Agreement or
otherwise, all other rights and remedies provided under the Uniform
Commercial Code of the applicable jurisdiction and other applicable laws,
which rights shall be cumulative.
SECTION 6.3. Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Purchaser
and the Seller hereby irrevocably appoint the Servicer, and the Servicer
hereby accepts such appointment, to act for the benefit of the Purchaser and
the Seller as custodian of the following documents or instruments which are
hereby or will hereby be constructively delivered to the Funding Agent, as
pledgee of the Seller, as of the Closing Date with respect to each Purchased
Receivable (the "Receivable Files"):
(a) the fully executed original of the Contract related to such
Purchased Receivable;
(b) the original credit application fully executed by the Obligor;
page 18
(c) the original Certificate of Title or such documents that the
Servicer or the Seller shall keep on file, in accordance with its customary
procedures, evidencing the security interest of the Seller in the Financed
Vehicle; and
(d) any and all other documents that the Servicer or the Seller shall
keep on file, in accordance with its customary procedures, relating to a
Purchased Receivable, an Obligor or a Financed Vehicle.
SECTION 6.4. Duties of the Servicer as Custodian. The Servicer shall
hold the Receivable Files as custodian for the benefit of the Seller and the
Purchaser and maintain such accurate and complete accounts, records and
computer systems pertaining to each Receivable File as shall enable the
Seller to comply with this Agreement. In performing its duties as custodian
the Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to receivable files
relating to all comparable automotive receivables that the Servicer services
for itself or others.
SECTION 6.5. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cut-Off Date and
shall continue in full force and effect until terminated pursuant to this
Section. If CFC shall cease to be Servicer in accordance with the provisions
of this Agreement, the appointment of such Servicer as custodian shall be
terminated by the Funding Agent on behalf of the Purchaser and the APA Bank.
The Purchaser may terminate the Servicer's appointment as custodian at any
time following the occurrence of a Servicer Default under Section 6.2(a) upon
thirty days written notification to the Servicer. As soon as practicable
after any termination of such appointment, the Servicer shall deliver the
Receivable Files to the Funding Agent or to a Person designated by the
Funding Agent at a place or places as the Funding Agent may reasonably
designate.
ARTICLE VII: REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Seller and the
Servicer. Each of the Seller and the Servicer makes, with respect to itself,
the following representations and warranties to the Purchaser:
(a) it is a limited liability company or corporation, as
applicable, duly organized or incorporated, validly existing and in good
standing under the laws of the jurisdiction of its organization or
incorporation and is duly qualified in good standing as a foreign
corporation or limited liability company in each jurisdiction where the
failure to be so qualified could materially adversely affect its ability to
perform its obligations hereunder;
page 19
(b) the execution, delivery and performance by the Seller and the
Servicer of the Sale Documents, and the Seller's use of the proceeds of the
Purchases, are within the Seller's and the Servicer's respective corporate
or other powers, have been duly authorized by all necessary corporate or
other action, do not contravene (i) the Seller's or the Servicer's
respective articles of organization or charter, as applicable, or operating
agreement or by-laws, as applicable, or (ii) law or any contractual
restriction binding on or affecting the Seller or the Servicer, and do not
result in or require the creation of any Adverse Claim (other than pursuant
hereto) upon or with respect to any of its properties; and no transaction
contemplated hereby requires compliance with any bulk sales act or similar
law;
(c) no authorization or 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 or
the Servicer of the Sale Documents, or for the perfection of or the
exercise by the Purchaser of its rights and remedies under the Sale
Documents, except for the filing of the financing statements referred to in
Section 4.3;
(d) each Sale Document constitutes the legal, valid and binding
obligation of the Seller and the Servicer, respectively, enforceable in
accordance with its terms;
(e) there is no pending or threatened action or proceeding
affecting the Seller or the Servicer or any of its subsidiaries before any
court, governmental agency or arbitrator which may materially adversely
affect (i) its financial condition or operations or (ii) its ability to
perform its obligations under the Sale Documents, or which could affect the
legality, validity or enforceability of any Sale Document or of the
interest of the Purchaser in the Purchased Receivables;
(f) immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to the Receivables,
the Related Security and Collections, free and clear of any Adverse Claim,
except as created by this Agreement; upon consummation of the Purchase, the
Purchaser will acquire good and marketable title to the Purchased
Receivables and to the Related Security and the Collections with respect
thereto, free and clear of any Adverse Claim, except as created by this
Agreement, and such transfer has been perfected under the Uniform
Commercial Code enacted in the State of Michigan, the location of the chief
executive office of the Seller and the Servicer; and each Receivable listed
on the Schedule of Contracts attached hereto is an Eligible Receivable;
(g) the information provided by the Seller to the Servicer for use
in each Servicer Report prepared under Section 5.4 and all information and
Sale Documents furnished or to be furnished at any time by the Seller to
the Funding Agent in connection with this Agreement is or will be accurate
in all material respects as of its date, and no
page 20
such document will contain any untrue statement of a material fact or will
omit to state a material fact which is necessary to make the facts stated
therein not misleading;
(h) the Seller is treating the conveyance of the interest in the
Purchased Receivables and the Collections under this Agreement to the
Purchaser as a sale for purposes of generally accepted accounting
principles; and
(i) neither the Seller nor the Servicer is an "investment company"
or required to register as an "investment company" pursuant to the
Investment Company Act of 1940, as amended.
SECTION 7.2. Repurchase by Servicer Upon Breach. The Seller, the
Servicer or the Funding Agent, as the case may be, shall inform the other
parties to this Agreement promptly upon the discovery of any breach of any
representation or warranty made pursuant to Section 4.9 or Section 7.1.
Unless the breach shall have been cured by the last day of the second
Settlement Period following such discovery (or, at the Servicer's election,
the last day of the first following Settlement Period), the Servicer shall
purchase any Receivable affected by such breach as of such last day. If,
during a Settlement Period, the Servicer extends the remaining term to
maturity of any Purchased Receivable, the Servicer will notify the Purchaser,
and the Purchaser, in its sole discretion, can request the Seller to purchase
such Receivable as of the last day of such Settlement Period. In
consideration of the purchase of any Receivable pursuant to either of the two
preceding sentences, the Servicer shall remit the Purchase Amount, and such
repurchased Receivable shall be transferred to the Servicer without recourse,
representation or warranty of any kind. The sole remedy of the Funding Agent
and the Purchaser with respect to a breach of representations and warranties
pursuant to Section 4.9 and Section 7.1 shall be to require the Servicer to
purchase Receivables pursuant to this Section.
ARTICLE VIII: COVENANTS
SECTION 8.1. Affirmative Covenants of the Seller and the Servicer. Until
the Investment is reduced to zero and all other amounts due to the Purchaser
hereunder have been paid in full, each of the Seller and the Servicer (with
respect to itself) will, unless the Purchaser has otherwise consented in
writing:
(a) maintain its existence in the jurisdiction of its organization
or incorporation, and qualify and remain qualified in good standing as a
foreign corporation or limited liability company in each jurisdiction where
the failure to be so qualified could materially adversely affect its
ability to perform its obligations hereunder;
page 21
(b) maintain and implement administrative and operating procedures,
and keep and maintain all records and other information, reasonably
necessary or advisable for the collection of the Purchased Receivables
(including, without limitation, records adequate to permit the daily
identification of Purchased Receivables and all Collections and adjustments
to Purchased Receivables);
(c) at its expense timely and fully perform and comply with all
material provisions and covenants required to be observed by CFC or the
Seller under the Contracts related to the Purchased Receivables;
(d) comply in all material respects with the Credit and Collection
Policy in regard to each Purchased Receivable and any Contract related to
such Receivable;
(e) comply in all material respects with applicable law;
(f) following the occurrence of a Servicer Default, grant the
Funding Agent access to the Receivable Files during normal business hours;
and
(g) treat the conveyance of the interest in the Purchased
Receivables and the Collections under this Agreement as a sale for purposes
of generally accepted accounting principles.
SECTION 8.2. Reporting Requirements of the Servicer. Until the
Investment is reduced to zero and all amounts due to the Purchaser hereunder
have been paid in full, the Servicer will, unless the Purchaser shall
otherwise consent in writing, furnish to the Purchaser:
(a) the Servicer Report as required under Section 5.4;
(b) as soon as possible, and in any event within thirty days shall
describe such event or condition and, if applicable, the steps being taken
with respect thereto by the Person(s) affected thereby of: (i) the
occurrence of any Servicer Default or event which with the passage of time
or the giving of notice or both would constitute a Servicer Default or (ii)
the institution of any litigation, arbitration proceeding or governmental
proceeding which could be reasonably likely to have a material adverse
effect on the performance by the Servicer of its obligations under this
Agreement or the other Sale Documents or the collectibility of the
Purchased Receivables; and
(c) such other information, documents, records or reports
respecting the Purchased Receivables or the condition or operations,
financial or otherwise, of the Servicer or the Seller as the Purchaser may
from time to time reasonably request.
page 22
SECTION 8.3. Negative Covenants of the Seller and the Servicer. Until
the Investment is reduced to zero and all other amounts due to the Purchaser
hereunder have been paid in full, neither the Seller nor the Servicer will,
unless the Purchaser has otherwise consented in writing:
(a) except as provided herein, sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon or with respect to any Purchased Receivables, the
Related Security or any Collections or assign any right to receive income
in respect thereof; or
(b) amend or otherwise modify the terms of any Purchased
Receivable, or amend, modify or waive any term or condition of any Contract
related thereto, in each case, in any manner which is inconsistent with the
Credit and Collection Policy.
SECTION 8.4. Protection of the Purchaser's Interest. Until the
Investment is reduced to zero and all other amounts due to the Purchaser
hereunder have been paid in full, each of the Seller and the Servicer agrees
that from time to time, at its expense, it will promptly execute and deliver
all instruments and documents and take all action that the Funding Agent may
from time to time reasonably request in order to perfect, evidence and
protect the validity, enforceability, perfection and priority of the Funding
Agent's and the Purchaser's interests in the Purchased Receivables, the
Related Security and the Collections and to enable the Funding Agent and/or
the Purchaser to exercise or enforce any of its rights hereunder. Without
limiting the generality of the foregoing, the Seller and the Servicer will:
(i) on or prior to the date hereof, ββββ its master data processing records
with a legend describing the Funding Agent's and the Purchaser's interests
therein; and (ii) upon the request of the Funding Agent, execute and file
such financing or continuation statements or amendments thereto or
assignments thereof as may be requested by the Funding Agent, provided,
however, that, prior to a Servicer Default, the Seller is not required to
deliver the Contracts to anyone other than the Servicer. To the fullest
extent permitted by applicable law, the Funding Agent shall be permitted to
sign and file continuation statements and amendments thereto and assignments
thereof without the Seller's signature. A reproduction of this Agreement or
any financing statement shall be sufficient as a financing statement.
ARTICLE IX: FUNDING AGENT
SECTION 9.1. Appointment of the Funding Agent. The Purchaser and the APA
Bank has appointed The Chase Manhattan Bank as its Funding Agent. The Funding
Agent is responsible for administering and enforcing this Agreement on behalf
of the Purchaser and the APA Bank and for fulfilling all other duties
expressly assigned to it in this Agreement. The Purchaser and the APA Bank
has granted the Funding Agent the authority to take all actions necessary to
assure the compliance of the Seller and the Servicer with the terms of
page 23
this Agreement and to take all actions required or permitted to be performed
by the Purchaser (or the APA Bank, as its assignee) under this Agreement.
SECTION 9.2. Successor Funding Agent. Pursuant to the terms of the Asset
Purchase Agreement, dated as of the date hereof, by and among the Purchaser,
the Funding Agent and the APA Bank, another Person may be appointed by the
APA Bank to serve as a successor Funding Agent. Any such successor Funding
Agent shall have the rights and obligations of the Funding Agent described in
Section 9.1.
ARTICLE X: MISCELLANEOUS
SECTION 10.1. Amendments. No amendment or waiver of, or consent to the
Seller's or the Servicer's departure from, any provision of this Agreement
shall be effective unless it is in writing and signed by the parties hereto
and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given.
SECTION 10.2. Notices. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
photocopy, facsimile, electronic mail or other digital communication) and
sent, as to each party hereto, at its address set forth on Schedule I hereto,
or at such other address as shall be designated by such party in a written
notice to the other parties hereto. All such notices and communications shall
be effective when sent.
SECTION 10.3. No Waiver; Remedies. No failure on the part of the
Purchaser to exercise, and no delay in exercising, any right hereunder or
under any Sale Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 10.4. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of the Seller, the Servicer, the
Purchaser, the Funding Agent and their respective successors and assigns,
except that the Seller shall not have the right to assign any interest herein
without the prior written consent of the Purchaser. Each of the parties
hereto hereby agree that the Purchaser may assign any or all of its rights
and obligations in and under this Agreement and in and to the Receivables,
Related Security and Collections to any Person; provided that in the case of
any such assignment proposed to be made to any Person other than the APA Bank
prior to the occurrence of a Servicer Default, the consent of the Seller
(which consent shall not be unreasonably withheld) shall be required. This
Agreement shall create and constitute the continuing obligation of the
parties hereto in accordance with its terms, and shall remain in full force
and effect until such time
page 24
as the Investment is reduced to zero and all other amounts due to the
Purchaser hereunder have been paid in full; provided, however, that the
rights and remedies of the Purchaser under Article IX shall survive any
termination of this Agreement.
SECTION 10.5. Governing Law. This Agreement and the Sale Documents shall
be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 10.6. Construction of the Agreement. The parties hereto intend
that the conveyance of the interest in the Purchased Receivables by the
Seller to the Purchaser shall be treated as sales for purposes of generally
accepted accounting principles. If, despite such intention, a determination
is made that such transactions shall not be treated as sales, then this
Agreement shall be interpreted to constitute a security agreement and the
transactions effected hereby shall be deemed to constitute a secured
financing by the Purchaser to the Seller under applicable law. For such
purpose, the Seller hereby grants to the Funding Agent on behalf of the
Purchaser and the APA Bank a continuing security interest in the Purchased
Receivables and the Related Security and Collections related thereto to
secure the obligations of the Seller to the Purchaser hereunder.
SECTION 10.7. No Proceedings. The Seller, the Funding Agent and the
Servicer each hereby agrees that it will not institute against the Purchaser
any bankruptcy, reorganization, insolvency or similar proceeding until the
date which is one hundred twenty-three (123) days since the last day on which
any commercial paper notes or medium term notes issued by the Purchaser shall
have matured.
SECTION 10.8. Confidentiality. Each of the Purchaser and the Seller
agrees to maintain the confidentiality of any information regarding the other
obtained in accordance with the terms of this Agreement which is not publicly
available, but one party may, with advance notice to the other, reveal such
information (a) to its attorneys and to applicable rating agencies, liquidity
providers and credit providers, (b) as necessary or appropriate in connection
with the administration or enforcement of this Agreement or the funding of
the Purchase under this Agreement, (c) as required by law, government
regulation, court proceeding or subpoena or (d) to bank regulatory agencies
and examiners.
SECTION 10.9. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their duly authorized officers as of the date set forth on the cover page
of this Agreement.
PREMIER RECEIVABLES L.L.C.,
as Seller
By: /s/ β. β. ββββββββ
-------------------------------------
Name: β. β. ββββββββ
Title: Vice President & Treasurer
CHRYSLER FINANCIAL
CORPORATION, as Servicer
By: /s/ β. β. ββββββββ
-------------------------------------
Name: β. β. ββββββββ
Title: Vice President & Treasurer
PARK AVENUE RECEIVABLES
CORPORATION, as Purchaser
By: /s/ βββββ β. βββββ
-------------------------------------
Name: βββββ β. βββββ
Title: Vice President
THE CHASE MANHATTAN BANK,
as Funding Agent
By: /s/ ββββββ β. βββββ, ββ.
-------------------------------------
Name: ββββββ β. βββββ, ββ.
Title: Managing Director
page 26
SCHEDULE I
NOTICE ADDRESSES
If to the Seller:
Premier Receivables L.L.C.
βββββ ββββββββ ββββ
ββββββββββ, ββββββββ βββββ-ββββ
Attention: Assistant Secretary
Telecopy: (βββ) βββ-ββββ
If to the Servicer:
Chrysler Financial Corporation
βββββ ββββββββ ββββ
ββββββββββ, ββββββββ βββββ-ββββ
Attention: Assistant Secretary
Telecopy: (βββ) βββ-ββββ
If to the Purchaser:
Park Avenue Receivables Corporation
c/o GSS Holdings, Inc.
ββ ββββ ββββ ββββββ, βββββ βββ
βββ ββββ, βββ ββββ βββββ
Attention: President
Telephone: (βββ) βββ-ββββ
Telecopy: (βββ) βββ-ββββ
with a copy to:
The Chase Manhattan Bank
βββ ββββ ββββ ββββββ, ββββ βββββ
βββ ββββ, βββ ββββ βββββ
Attention: Structured Finance Services
Telephone: (βββ) βββ-ββββ
Telecopy: (βββ) βββ-ββββ
If to the Funding Agent:
page ββ
βββ βββββ βββββββββ Bank
1 Chase βββββββββ βββββ, βββ βββββ
βββ ββββ, βββ ββββ βββββ
Attention: Loan and Agency Services
Telephone: (βββ) βββ-ββββ
Telecopy: (βββ) βββ-ββββ