Exhibit 10-AAAAA
CONFORMED COPY
RECEIVABLES SALE AGREEMENT
among
PREMIER RECEIVABLES L.L.C.
as Seller,
CHRYSLER FINANCIAL CORPORATION
as Servicer,
RECEIVABLES CAPITAL CORPORATION
as Purchaser
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as Administrative Agent
Dated as of November 20, 1997
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS................................................... 4
ARTICLE II: SALE AND PURCHASE............................................ 11
SECTION 2.1. Sale and Purchase.................................. 11
SECTION 2.2. Purchase Price..................................... 11
SECTION 2.3. Seller's Optional Termination...................... 11
ARTICLE III: FEES AND EXPENSES........................................... 12
SECTION 3.1. Determination of Carrying Costs.................... 12
SECTION 3.2. Purchase Discount.................................. 12
SECTION 3.3. Carrying Cost True-Up Amount....................... 13
SECTION 3.4. Program Fee........................................ 13
SECTION 3.5. Servicer Fee....................................... 13
SECTION 3.6. Interest on Unpaid Amounts......................... 14
ARTICLE IV: CONDITIONS PRECEDENT TO PURCHASE ............................ 14
SECTION 4.1. Conditions Precedent to Purchase................... 14
SECTION 4.2. Absence of Liens................................... 14
SECTION 4.3. Financing Statements............................... 14
SECTION 4.4. Schedule of Contracts.............................. 14
SECTION 4.5. Seller Resolutions................................. 14
SECTION 4.6. Servicer Resolutions............................... 15
SECTION 4.7. Legal Opinion of Counsel to the Seller and
the Servicer..................................... 15
SECTION 4.8. Good Standing Certificates......................... 15
SECTION 4.9. Representations and Covenants...................... 15
SECTION 4.10. Other Documents.................................... 15
SECTION 4.11. Up-Front Fee....................................... 15
ARTICLE V: SETTLEMENT PROCEDURES......................................... 16
SECTION 5.1. Collections........................................ 16
SECTION 5.2. Application of Collections......................... 16
SECTION 5.3. Application of Collections on Settlement Dates..... 16
SECTION 5.4. Servicer Report.................................... 16
ARTICLE VI: SERVICING OF RECEIVABLES..................................... 17
SECTION 6.1. Appointment and Duties of the Servicer............. 17
SECTION 6.2. Replacement of the Servicer........................ 17
SECTION 6.3. Custody of Receivable Files........................ 18
SECTION 6.4. Duties of the Servicer as Custodian................ 19
SECTION 6.5. Effective Period and Termination................... 19
ARTICLE VII: REPRESENTATIONS AND WARRANTIES.............................. 20
SECTION 7.1 Representations and Warranties of the
Seller and the Servicer.......................... 20
ARTICLE VIII: COVENANTS.................................................. 22
SECTION 8.1. Affirmative Covenants of the Seller and
the Servicer..................................... 22
SECTION 8.2. Reporting Requirements of the Servicer............. 22
SECTION 8.3. Negative Covenants of the Seller and the Servicer.. 23
SECTION 8.4. Protection of the Purchaser's Interest............. 23
ARTICLE IX: ADMINISTRATIVE AGENT ........................................ 24
SECTION 9.1. Appointment of the Administrative Agent............ 24
SECTION 9.2. Replacement of the Administrative Agent............ 24
ARTICLE X: MISCELLANEOUS................................................. 24
SECTION 10.1. Amendments........................................ 24
SECTION 10.2. Notices........................................... 24
SECTION 10.3. No Waiver; Remedies............................... 25
SECTION 10.4. Binding Effect; Assignability..................... 25
SECTION 10.5. Governing Law..................................... 25
SECTION 10.6. Construction of the Agreement..................... 25
SECTION 10.7. No Proceedings.................................... 25
SECTION 10.8. Confidentiality................................... 26
SECTION 10.9. Execution in Counterparts......................... 26
RECEIVABLES SALE AGREEMENT dated as of November 20, 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", RECEIVABLES CAPITAL CORPORATION, as the "Purchaser" and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as the
"Administrative Agent" for the Purchaser.
ARTICLE I: DEFINITIONS
"Administrative Agent" means Bank of America National Trust
and Savings Association or any replacement thereof under Section 9.2.
"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 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.
"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
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DP = 30 days, except for the initial
Settlement Period when it shall be the
number of days from the Cut-Off
Date to November 30, 1997
APB = the Aggregate Principal Balance on
the first day of such Settlement
Period.
"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.
"Credit Facilities" means each of the committed loan facilities,
lines of credit, letters of credit and other forms of credit enhancement
available to the Purchaser which are not Liquidity Facilities.
"Cut-Off Date" means November 14, 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.
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"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:
(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,
(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
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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,
(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 Administrative 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 Administrative Agent, for
the benefit of the Purchaser,
(xi) as to which the Administrative 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,
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(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 72 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, and
(xiii) 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.
"Fee Letter" means that certain letter agreement of even date
herewith between the Seller and the Administrative Agent, on its own behalf
and that of the Purchaser.
"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 an automobile or light-duty truck, together
with all accessions thereto, securing an Obligor's indebtedness under the
applicable Contract.
"Hedging Proceeds" means any amount payable by CFC to the
Administrative 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
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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.
"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 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.
"Liquidity Facilities" means each of the committed loan facilities,
asset purchase facilities, lines of credit and other financial accommodations
available to the Purchaser to support the liquidity of the Purchaser's
commercial paper notes and medium term notes.
"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
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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.
"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 November 20, 1997.
"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 Administrative
Agent prior to the Purchase Date being sold to Purchaser under this
Agreement.
"Purchaser" means Receivables Capital 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.
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"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 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 the amount designated as such in the Fee Letter.
"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 or CFC in connection with
the transactions contemplated in this Agreement.
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"Schedule of Contracts" means the list of Contracts delivered
to the Administrative 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.
"Settlement Date" means the 10th 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 Purchase Date and end on November 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.
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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 Administrative Agent for
the account of 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) each of the Administrative Agent and 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) each of the Administrative Agent and 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 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 Administrative
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
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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 Administrative 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 or the Administrative 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 (a) above), on the basis of a 360-day
year; and
(c) the weighted average of the annual interest rates applicable to
any Liquidity Facilities under which the Purchaser has borrowed loans
during the related Settlement Period (which loans shall be borrowed only
after a determination by the Agent in its sole and absolute discretion
that financing the Purchaser's 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 or
assignment of an interest under a Liquidity Facility or a Credit
Facility, the Purchase Discount shall equal the rate or weighted average
of the rates applicable to such issuance or borrowing or assignment,
(including any discount rates in a transaction structured as a sale)
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provided, further, that, for purposes of the foregoing, the interest rates
applicable under any Liquidity Facility and or any Credit Facility shall not
exceed the greater of (i) the reserve adjusted "LIBO Rate" quoted by the
Administrative Agent plus 0.50% per annum or (ii) the sum of (x) the interest
rate then payable under the Long Term Revolving Credit Agreement, dated as of
April 24, 1997 (as amended from time to time) among CFC, Chrysler Credit
Canada Ltd., the Banks listed therein and The Chase Manhattan Bank as agent,
plus (y) 0.25% per annum.
SECTION 3.3. Carrying Cost True-Up Amount. Two Business Days prior
to the end of each Settlement Period, the Administrative 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
Administrative 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 Administrative 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 Administrative 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 the amount
designated as such in the Fee Letter, which Program Fee 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
13
to the Servicer) out of amounts required to be remitted by the Servicer in
accordance with Section 5.3.
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
Administrative 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 1% 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 Administrative Agent will
have received acknowledgment copies of UCC-1 financing statements, and all
other documents reasonably requested by the Administrative Agent, to evidence
the perfection of the Purchaser's interest in the Purchased Receivables, the
Related Security and the Collections.
SECTION 4.4. Schedule of Contracts. The Administrative Agent will
have received the Schedule of Contracts.
SECTION 4.5. Seller Resolutions. The Administrative 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
14
(c) the completeness and correctness of the attached articles of
organization and operating agreement of the Seller.
SECTION 4.6. Servicer Resolutions. The Administrative 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 Administrative 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 Administrative Agent or
the Purchaser may reasonably request.
SECTION 4.8. Good Standing Certificates. The Administrative 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 Administrative Agent and the
Purchaser will have received all other documents that either of them had
reasonably requested from the Seller or the Servicer.
15
SECTION 4.11. Up-Front Fee. The Seller shall have paid a fee to the
Administrative Agent at Closing in the amount specified in the Fee Letter as
the Up-Front Fee, which Up-Front Fee shall include all up-front expenses,
including but not limited tolegal fees, filing and administrative fees,
rating agency fees, liquidity and credit enhancement fees incurred with
respect to the Purchase.
ARTICLE V: SETTLEMENT PROCEDURES
SECTION 5.1. Collections. The Servicer shall remit Collections with
respect to each Settlement Period to the Administrative 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
Administrative Agent and the Administrative Agent shall distribute such
Collections, together with any Hedging Proceeds received by the
Administrative 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 3 Business Days before the
immediately following Settlement Date.
16
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 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 Administrative Agent will, at its option, 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
Purchaser 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 Administrative 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 Administrative 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 which continues unremedied for
sixty days after the earlier of the date on
17
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
Administrative 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 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
Purchaser, 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 Purchaser all records,
correspondence and documents requested by the Purchaser 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 Purchaser and
the Administrative Agent 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 Purchaser hereunder on each Certificate of Title relating to each
Financed Vehicle and (ii) the Purchaser and the Administrative Agent
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.
18
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 constructivelydelivered to the
Administrative 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;
(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 Purchaser. 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 Administrative Agent
or to a Person designated by the
19
Administrative Agent at a place or places as the Administrative 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 (including in its capacity as
the originator of the Receivables) makes, with respect to itself and with
respect to the Receivables as described in clauses (f), (i) and (j) below),
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;
(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;
20
(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 (including any Adverse Claim arising by or through CFC),
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;
(g) the information provided by CFC or 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 Administrative Agent in connection with this
Agreement is or will be accurate in all material respects as of its
date, and no 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;
(i) all such Receivables are Eligible Receivables at the time of
sale and each of the Seller and CFC shall be deemed to have received
collections in full of any such Receivable with respect to which this
representation proves incorrect; and
(j) neither CFC nor the Seller has used or will use any selection
procedures believed by them to be adverse to the Purchaser in selecting
the Receivables to be sold by CFC to the Seller in connection herewith
and by the Seller to the Purchaser
21
hereunder except for such procedures to which the Purchaser has consented in
writing.
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;
(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 (the Seller and Servicer may only amend and modify
the Credit and Collections Policy if such modification will not have a
material adverse effect on the collectibility of any Receivable); and
(e) 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
22
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.
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 Administrative
Agent may from time to time reasonably request in order to perfect, evidence
and protect the validity, enforceability, perfection and priority of the
Administrative Agent's and the Purchaser's interests in the Purchased
Receivables, the
23
Related Security and the Collections and to enable the Administrative Agent
and/or the Purchaser to exercise or enforce any of its rights hereunder.
Without limiting the gene rality 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 Administrative Agent's and
the Purchaser's interests therein; and (ii) upon the request of the
Administrative Agent, execute and file such financing or continuation
statements oramendments thereto or assignments thereof as may be requested by
the Administrative Agent, provided, however, that the Seller is not required
to deliver the Contracts to anyone other than the Servicer. To the fullest
extent permitted by applicable law, the Administrative 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: ADMINISTRATIVE AGENT
SECTION 9.1. Appointment of the Administrative Agent. The Purchaser
has appointed Bank of America National Trust and Savings Association as its
Administrative Agent. The Administrative Agent is responsible for
administering and enforcing this Agreement and fulfilling all other duties
expressly assigned to it in this Agreement. The Purchaser has granted the
Administrative Agent the authority to take all actions necessary to assure
the Seller's compliance with the terms of this Agreement and to take all
actions required or permitted to be performed by the Purchaser under this
Agreement.
SECTION 9.2. Replacement of the Administrative Agent. The Purchaser
may, at any time in its discretion, remove the Administrative Agent and
appoint a new Administrative Agent, which shall have the duties 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.
24
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 under its name on the
signature pages 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 Administrative 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. The
Purchaser may assign any of its rights or obligations hereunder to any
Person; provided that in the case of any such assignment proposed to be made
prior to the occurrence of a Servicer Default (other than an assignment to
the Administrative Agent or an Affiliate thereof pursuant to a Liquidity
Facility), 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 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
25
to the Purchaser 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 Administrative 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. The Purchaser agrees to maintain the
confidentiality of any information regarding the Seller obtained in
accordance with the terms of this Agreement which is not publicly available,
but the Purchaser may, with advance notice to the Seller, reveal such
information (a) 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 its 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.
26
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. βββββ
--------------------------------------
Title: Assistant Treasurer of Premier Auto
Receivables Company, a Member of
the Seller
Address: βββββ ββββββββ ββββ
ββββββββββ, ββββββββ βββββ-ββββ
Attention: Assistant Secretary
Facsimile: βββ-βββ-ββββ
CHRYSLER FINANCIAL CORPORATION,
as Servicer
By: /s/ β.β. βββββ
--------------------------------------
Title: Assistant Treasurer
Address: βββββ ββββββββ ββββ
ββββββββββ, ββββββββ βββββ-ββββ
Attention: Assistant Secretary
Facsimile: βββ-βββ-ββββ
RECEIVABLES CAPITAL CORPORATION
as Purchaser
By: /s/ β. ββββββ ββββββ
--------------------------------------
Address: c/o MERRILL βββββ MONEY
MARKETS, INC.
World Financial Center, North Tower
βββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ-ββββ
Attention: βββββ βββββββββ
Facsimile: βββ-βββ-ββββ
27
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Administrative Agent
By: /s/ ββββββββ βββββββ
--------------------------------------
Title: Attorney-in-Fact
Address: βββ βββββ βββββββ ββββββ
βββββββ, ββββββββ βββββ
Attention: Asset Securitization
Group
Facsimile: βββ-βββ-ββββ
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