Exhibit 10-ZZZZ
Conformed Copy
RECEIVABLES SALE AGREEMENT
among
PREMIER RECEIVABLES L.L.C.
as Seller,
CHRYSLER FINANCIAL CORPORATION
as Servicer,
PREFERRED RECEIVABLES FUNDING CORPORATION
as a Purchaser,
FALCON ASSET SECURITIZATION CORPORATION,
as a Purchaser
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
Dated as of November 6, 1997
i
TABLE OF CONTENTS
Page
ARTICLE I: DEFINITIONS 1
ARTICLE II: SALE AND PURCHASE 10
Section 2.1. Sale and Purchase 10
Section 2.2. Purchase Price 10
Section 2.3. Seller's Optional Termination 10
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 11
Section 3.4. Program Fee 12
Section 3.5. Servicer Fee 12
Section 3.6. Interest on Unpaid Amounts 12
ARTICLE IV: CONDITIONS PRECEDENT TO PURCHASE 12
Section 4.1. Conditions Precedent to Purchase 12
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 13
Section 4.7. Legal Opinion of Counsel to the Seller and
the Servicer 13
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 14
Section 4.12. Hedging 14
Section 4.13. Insolvency 14
ARTICLE V: SETTLEMENT PROCEDURES 14
ii
Section 5.1. Collections 14
Section 5.2. Application of Collections 14
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 15
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
ARTICLE VIII: COVENANTS 20
Section 8.1. Affirmative Covenants of the Seller and the Servicer 20
Section 8.2. Reporting Requirements of the Servicer 20
Section 8.3. Negative Covenants of the Seller and the Servicer 21
Section 8.4. Protection of the Purchaser's Interest 21
ARTICLE IX INDEMNIFICATION 22
Section 9.1 Indemnification 22
ARTICLE X: ADMINISTRATIVE AGENT 22
Section 10.1. Appointment of the Administrative Agent 22
Section 10.2. Replacement of the Administrative Agent 23
ARTICLE XI: MISCELLANEOUS 23
Section 11.1. Amendments 23
Section 11.2. Notices 23
Section 11.3. No Waiver; Remedies 23
Section 11.4. Binding Effect; Assignability 23
Section 11.5. Governing Law 24
Section 11.6. Construction of the Agreement 24
iii
Section 11.7. No Proceedings 24
Section 11.8. Confidentiality 24
Section 11.9. Execution in Counterparts 24
EXHIBITS
EXHIBIT A - Form of Servicer Report
EXHIBIT B - Form of Opinion of Counsel
page 1
RECEIVABLES SALE AGREEMENT dated as of November __, 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," Preferred Receivables Funding Corporation, as a
"Purchaser," FALCON Asset Securitization Corporation, as a "Purchaser," and
The First National Bank of Chicago, as the "Administrative Agent" for the
Purchasers.
ARTICLE I: DEFINITIONS
"Administrative Agent" means The First National Bank of Chicago, or
any replacement thereof under Section 10.2.
"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.
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 November 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, so long as
the revision or modification is not expected to have a material adverse
effect on Collections, and so long as such revised or modified policies and
practices are not different from those collections policies and practices
used by the Servicer in servicing similar portfolios of retail automotive
receivables, whether owned by the Servicer, the Seller or any third party.
"Credit Facilities" means each of the committed loan facilities,
lines of credit, letters of credit and other forms of credit enhancement
available to a Purchaser which are not Liquidity Facilities.
"Cut-Off Date" means November 4, 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.
Page 4
"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
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
Page 5
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
Purchasers, 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 Purchasers,
(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,
(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 Purchasers
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 the letter agreement of even date herewith between
the Seller and the Administrative Agent, for itself and for the benefit of
the Purchasers.
"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).
Page 6
"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 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
Purchasers 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.
Page 7
"Liquidity Facilities" means each of the committed loan facilities,
lines of credit, standby asset purchase agreements and other financial
accommodations available to a Purchaser to support the liquidity of such
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 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 6, 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.
Page 8
"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 the Purchasers under this
Agreement.
"Purchaser" means either Preferred Funding Receivables Corporation
and its successors and assigns ("Prefco"), or FALCON Asset Securitization
Corporation and its successors and assigns ("FALCON"), and "Purchasers" means
Prefco and FALCON, collectively.
"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 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
page 9
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 in connection with the
transactions contemplated in this Agreement.
"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.
Page 10
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 Purchasers 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 Purchasers
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 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 such 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 aggregate purchase price payable by
Purchasers the 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 Purchasers 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 Purchasers hereunder, all
Collections or other cash received by either Purchaser on account of
Receivables and the interest of such Purchaser therein and all Receivables
held by or on behalf of such Purchaser will be transmitted in the form
received by such Purchaser to the Seller. The transmission of such amount by
such 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 Purchasers
on any subsequent Settlement Date 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 Purchasers 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 Purchasers or the Administrative Agent.
Page 11
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 Purchasers to (x) purchase receivables, or extend
financing secured thereby, at a fixed interest rate or (y) conduct any
arbitrage activities of the Purchasers), 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 Liquidity Facilities under which the Purchasers have borrowed loans
during the related Settlement Period (which loans shall be borrowed only
after a determination by the Purchasers that financing its 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 funding 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, 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 reserve adjusted "LIBO Rate"
quoted by the Administrative Agent plus 0.50 % (50 basis points) 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
Page 12
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 amount 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 Purchasers 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.
Section 3.6. Interest on Unpaid Amounts. To the extent that the Seller
or Servicer fails to pay when due to the Purchasers 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 2.00% (200 basis points) 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 Purchasers will make the Purchase:
Page 13
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 Purchasers' interest in the Purchased Receivables, the
Related Security and the Collections.
Section 4.4. Schedule of Contracts. The Administrative Agent will have
received and approved 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
(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
Page 14
Exhibit B, together with such other matters as the Administrative Agent or a
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 each
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
Administrative Agent at Closing in the amount designated in the Fee Letter as
the "Up-Front Fee," which amount 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.
SECTION 4.12. Hedging. The Agent shall have received one or more duly
executed, valid and enforceable interest rate protection agreement in form
and substance satisfactory to the Administrative Agent.
SECTION 4.13 Insolvency: No Insolvency Event has occurred and is
continuing with respect to the Seller or the Servicer.
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:
Page 15
(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
Purchasers or their respective assigns (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
Purchasers, either in writing or electronically, with a Servicer Report
with respect to each Settlement Period no later than three Business Days
before the Settlement Date.
ARTICLE VI: SERVICING OF RECEIVABLES
SECTION 6.1. Appointment and Duties of the Servicer. The Purchasers
and the Seller each hereby appoint CFC as the Servicer and CFC accepts such
appointment. The Servicer, for the benefit of the Purchasers (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 Purchasers 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 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 Purchasers. The Purchasers shall
upon the written request of the Servicer furnish the Servicer with any powers
of attorney and other documents reasonably
Page 16
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 a 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 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 a 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, either
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 Purchasers, 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 Purchasers all records,
correspondence and documents requested by the Purchasers 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
page 17
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 Purchasers and
the Administrative Agent may (a) notify Obligors of the ownership
interest of the Purchasers hereunder in the Purchased Receivables and the
Related Security, (b) notify each issuer of an Insurance Policy of the
ownership interest of the Purchasers 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
Purchasers hereunder on each Certificate of Title relating to each
Financed Vehicle and (ii) the Purchasers 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.
SECTION 6.3. Custody of Receivable Files. To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the
Purchasers and the Seller hereby irrevocably appoint the Servicer, and the
Servicer hereby accepts such appointment, to act for the benefit of the
Purchasers and the Seller as custodian of the following documents or
instruments which are hereby or will hereby be constructively delivered 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
Purchasers 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
Page 18
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 Purchasers. The Purchasers 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 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 makes, with respect to itself,
the following representations and warranties to the Purchasers and their
respective assigns:
(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
Page 19
the exercise by the Purchasers of their respective 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 Purchasers 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 Purchasers 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 the Seller to the Servicer for use in
each Servicer Report prepared under Section 5.4 and all information
(including, but not limited to, the Schedule of Contracts) 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
Purchasers as a sale for purposes of generally accepted accounting
principles;
(i) no selection procedures believed by the Seller to be adverse to
the Purchasers and of which the Purchasers had no actual knowledge were or
will be used in selecting the Receivables for purchase hereunder,
(j) each of the Contracts on the Schedule of Contracts gives rise to
an Eligible Receivable, and
page 20
(k) there has been no material change in any Credit and Collection
Policy that would have a material adverse effect on the performance of the
Receivables.
ARTICLE VIII: COVENANTS
SECTION 8.1. Affrimative Covenants of the Seller and the Servicer.
Until the Investment is reduced to zero and all other amounts due to the
Purchasers hereunder have been paid in full, each of the Seller and the
Servicer (with respect to itself) will, unless the Purchasers have 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 and with all applicable laws with regard to each Purchased
Receivable and any Contract related to such 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 Purchasers hereunder
have been paid in full, the Servicer will, unless the Purchasers shall
otherwise consent in writing, furnish to the Purchasers:
(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
Page 21
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 Purchasers 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 Purchasers
hereunder have been paid in full, neither the Seller nor the Servicer will,
unless the Purchasers have 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 Purchasers' Interest. Until the Investment
is reduced to zero and all other amounts due to the Purchasers 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 Purchasers' interests in the
Purchased Receivables, the Related Security and the Collections and to
enable the Administrative Agent and/or the Purchasers 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 Administrative Agent's and the Purchasers' interests
therein; and (ii) upon the request of the Administrative Agent, execute
and file such financing or continuation statements or amendments 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
Page 22
the Seller's signature. A reproduction of this Agreement or any financing
statement shall be sufficient as a financing statement.
ARTICLE IX: INDEMNIFICATION
SECTION 9.1. Indemnification. Without limiting any other rights which
the Agent or any Purchaser may have hereunder or under applicable law, the
Seller and the Servicer each agree to indemnify the Agent, the Purchasers and
any assign of any Purchaser, and each of their respective officers,
directors, agents and employees (each of the foregoing, an "Indemnified
Party") from and against any and all damages, losses, claims, taxes,
liabilities, costs, expenses and for all other amounts, payable, including
reasonable attorneys' fees (which attorneys may be employees of the Agent or
such Purchaser or assign) and all disbursements awarded against or incurred
by any of them (any or all of the foregoing, an "Indemnity Claim") out of, or
as a result of:
(a) any breach of any representation, warranty or covenant by the
Seller or Servicer;
(b) any untrue statements of material fact or untrue or materially
inaccurate information provided by the Seller or Servicer regarding the
Receivables or in any Servicer Report, the Schedule of Contracts, the
Credit and Collection Policy or any other information provided to the
Administrative Agent or either Purchaser with respect to this
transaction;
(c) enforcement of this Agreement and any other documents delivered
hereunder; and
(d) any lawsuits, disputes or claims brought against the Agent,
either Purchaser or any of either Purchaser's assigns by any third party
arising out of or as a result of the existence of this Agreement;
provided, however, that neither the Seller nor the Servicer shall be liable
to any Indemnified Party to the extent that the final judgment of a court of
competent jurisdiction holds that such Indemnity Claim resulted from the
gross negligence or willful misconduct of such Indemnified Party.
ARTICLE X: ADMINISTRATIVE AGENT
SECTION 10.1. Appointment of the Administrative Agent. The Purchasers
have appointed The First National Bank of Chicago 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 Purchasers have granted the
Page 23
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 Purchasers under this
Agreement.
SECTION 10.2. Replacement of the Administrative Agent. The Purchasers
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 10.1.
ARTICLE XI: MISCELLANEOUS
SECTION 11.1. 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 11.2 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 11.3. No Waiver; Remedies. No failure on the part of either
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 11.4. Binding Effect; Assignability This Agreement shall be
binding upon and inure to the benefit of the Seller, the Servicer, the
Purchasers, 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 Purchasers. Each of
the Purchasers 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 by
such Purchaser to the Administrative Agent or to a liquidity provider with
respect 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 Purchasers
Page 24
hereunder have been paid in full; provided, however, that the rights and
remedies of the Purchasers under Article IX shall survive any termination of
this Agreement.
SECTION 11.5. 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 11.6. Construction of the Agreement. The parties hereto intend
that the conveyance of the interest in the Purchased Receivables by the
Seller to the Purchasers 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 Purchasers to the Seller under applicable law. For such
purpose, the Seller hereby grants to the Purchasers a continuing security
interest in the Receivables listed on the Schedule of Contracts and the
Related Security and Collections related thereto to secure the obligations of
the Seller to the Purchasers hereunder.
SECTION 11.7. No Proceedings. The Seller, the Administrative Agent
and the Servicer each hereby agrees that it will not institute against either
Purchaser any bankruptcy, reorganization, insolvency or similar proceeding
until the date which is one year and one day since the last day on which any
commercial paper notes or medium term notes issued by such Purchaser shall
have matured.
SECTION 11.8. Confidentiality. Each 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 such 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 11.9. 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: 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: β. β. βββββ
-------------------------
Title: Assistant Treasurer
----------------------
Address: βββββ ββββββββ ββββ
ββββββββββ, ββββββββ βββββ-ββββ
Attention: Assistant Secretary
Facsimile: βββ-βββ-ββββ
Preferred Receivables Funding Corporation,
as a Purchaser
By:/s/ ββββ β. βββ
---------------------
Authorized Signer
Address:
c/o The First National Bank of Chicago
βββ βββββ ββββββββ βββββ
βββββββ, ββ βββββ-ββββ
Attn: ββββ β. βββ
Facsimile: βββ-βββ-ββββ
FALCON Asset Securitization Corporation,
as a Purchaser
By:/s/ ββββ β. βββ
--------------------
Authorized Signer
Address:
c/o The First National Bank of Chicago
βββ βββββ ββββββββ βββββ
βββββββ, ββ βββββ-ββββ
Attn: ββββ β. βββ
Facsimile: βββ-βββ-ββββ
The First National Bank of Chicago,
as Administrative Agent
By:/s/ Georgy βββ βββββββββββ
--------------------------
Authorized Signer
Address:
βββ βββββ ββββββββ βββββ
βββββββ, ββ βββββ-ββββ
Attn: ββββ β. βββ
Facsimile: βββ-βββ-ββββ