Exhibit 10-GGGG
Conformed Copy
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
among
CHRYSLER CREDIT CANADA LTD.
as Seller and Servicer,
CHRYSLER FINANCIAL CORPORATION
as Performance Guarantor,
CANADIAN MASTER TRUST
as Purchaser,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ INC.
as Administrative Agent,
Dated as of December 18, 1996
TABLE OF CONTENTS
PAGE NO.
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ARTICLE I: DEFINITIONS ......................................... 1
ARTICLE II: SALE AND PURCHASE ................................... 11
ARTICLE III: FEES AND EXPENSES ................................... 12
ARTICLE IV: CONDITIONS PRECEDENT TO PURCHASE .................... 14
ARTICLE V: SETTLEMENT PROCEDURES ............................... 16
ARTICLE VI: SERVICING OF RECEIVABLES ............................ 17
ARTICLE VII: REPRESENTATIONS AND WARRANTIES ...................... 20
ARTICLE VIII: COVENANTS ........................................... 22
ARTICLE IX: ADMINISTRATIVE AGENT ................................ 24
ARTICLE X: COVENANTS OF CFC .................................... 25
ARTICLE XI: MISCELLANEOUS ....................................... 26
EXHIBIT A Form of Servicer Report
EXHIBIT B Form of Purchase Request
EXHIBIT C Form of Assignment
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT dated as of
December 18, 1996, as amended and restated as of November 10, 1997, among
CHRYSLER CREDIT CANADA LTD., a Canadian corporation, as the "Seller" and
initial Servicer, CHRYSLER FINANCIAL CORPORATION, a Michigan corporation, as
the "Performance Guarantor", CANADIAN MASTER TRUST, as the "Purchaser" and
▇▇▇▇▇▇▇ ▇▇▇▇▇ INC., as the "Administrative Agent" for the Purchaser.
ARTICLE I: DEFINITIONS
"Administrative Agent" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. and any replacement
thereof under Section 9.1.1.
"Advance" means a Precomputed Advance determined in accordance with
Section 5.3.
"Adverse Claim" means any mortgage, pledge, security interest,
hypothecation, hypothec, 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 favour 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 including the
Exhibits hereto and the Schedule of Contracts, as amended and restated as of
November 10, 1997 and as it may be further 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 the amount advanced under a 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.
"Annual Percentage Rate" or "APR" of a Receivable means the annual
percentage rate or, in the case of Contracts originated in the Province of
Quebec, the annual rate, stated on the face of the related Contract.
"Assignment" means an assignment of Purchased Assets in the form of
Exhibit C hereto.
"Bankers' Acceptance Rate" means, on any day, the annual rate of
interest which is the rate quoted by Bank of Montreal for bankers'
acceptances accepted by it having a maturity equivalent to the applicable
Settlement Period, provided that if no such quoted rate is available on any
day, "Bankers' Acceptance Rate" on that day shall be such other rate as the
Administrative Agent and the Seller may agree.
"Business Day" means any day other than a Saturday, Sunday,
statutory holiday or other holiday on which banks are closed in Toronto or
New York.
"Carrying Costs" means, for each Settlement Period, an amount equal
to the sum of:
(i) (PD + PF) x DSP x AI
--------
365
plus
(ii) SF x DSP x APB
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365
where PD = Purchase Discount
PF = Program Fee
SF = Servicer Fee
DSP = the number of days in such
Settlement Period
AI = the average daily Investment for such
Settlement Period
APB = the average daily Aggregate Principal
Balance for such Settlement Period.
"Carrying Costs True-up Amount" has the meaning assigned to that
term in Section 3.1.1.
"CFC" means, Chrysler Financial Corporation, a Michigan corporation,
and its successors and assigns.
"Collection" means any amount paid by an Obligor or any other Person
with respect to a Purchased Receivable, including (i) Liquidation Proceeds,
(ii) amounts paid to the Purchaser pursuant to Section 2.4 and (iii) the
amount paid to the Purchaser on the sale of Purchased Receivables pursuant to
Section 2.3.
"Collection Period" means a calendar month, or, in the case of the
initial Collection Period for a Purchase, the period beginning on the Cut-Off
Date and ending on the last calendar day of the calendar month in which the
Cut-Off Date occurs.
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"Contract" means, with respect to any Receivable, any and all
instruments, conditional sale contracts, 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 provided
that and such revision or modification shall apply equally to the Purchased
Receivables and Receivables owned by the Seller.
"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 (except under this Agreement) which are not
Liquidity Facilities.
"Cut-Off Date" means December 12, 1996 in respect of the initial
Purchase and means the date specified in the Purchase Request in respect of
each subsequent Purchase.
"Dealer" means an automobile or light-duty truck dealership located
within Canada 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 month,
a fraction, expressed as a percentage, the numerator of which is the sum of
the Principal Balances of all Purchased Receivables which were Delinquent
Receivables as of the last calendar day of such month and the last calendar
day of each of the two immediately preceding months, to the extent this
Agreement was in effect during such preceding months, and the denominator of
which is the sum of the Aggregate Principal Balance on such last calendar day
of such month and on the last calendar day of each of the two immediately
preceding months, to the extent this Agreement was in effect during such
preceding months.
"Delinquent Receivable" means any Receivable which has 10% or more
of a scheduled payment past due for more than 60 days.
"Defaulted Receivable" means a Receivable (i) under which an amount
greater than or equal to the amount required to be paid under the related
Contract for the calendar month ending on the last day of the most recently
completed Settlement Period has been outstanding for a period greater than or
equal to three calendar months, or (ii) in respect of the Obligor (other than
a guarantor) of which an Insolvency Event has occurred and is continuing.
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"Eligible Receivable" means, as of the applicable Cut-Off Date, any
Receivable:
(i) the Obligor of which (a) is a resident of Canada 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
Delinquent Receivable and (b) is not the subject of any
bankruptcy, insolvency or reorganization proceeding or any
other proceeding seeking the appointment of a receiver,
trustee or other similar official for the Obligor or any
substantial part of the Obligor's property,
(iii) which is "chattel paper" within the meaning of the
applicable PPSA,
(iv) which is denominated and payable only in Canadian dollars
in Canada,
(v) which (a) has been originated in Canada 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 defence, 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 favour of the Seller 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 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) the Seller, and such
assignment of such Contract to the Seller is expressly
contemplated in such Contract,
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(ix) which, together with the related Contract, does not
contravene any laws, rules or regulations applicable
thereto and with respect to which no part of the related
Contract 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 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 which is in full force and
affect, and the proceeds of the Required Insurance have
been assigned to the Seller or the Seller is the loss payee
thereof and the Required Insurance, including the proceeds,
are fully assignable to 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,
(xii) with respect to the outstanding principal balance thereof,
(a) the related Contract requires that payment in full of
such outstanding balance is scheduled to be made (1) not
earlier than 5 months after, and (2) not later than 60
months after the date any interest therein is assigned to
the Purchaser hereunder and (b) such outstanding balance is
scheduled to be paid in equal consecutive monthly
instalments in accordance with the actuarial method, the
simple interest method or the Rule of 78s, and
(xiii) which Receivable bears interest at the Annual Percentage
Rate and such rate remains fixed during the term of such
Receivable and accrued interest on such Receivable is
payable monthly, in arrears.
"Finance Charges" means, with respect to any Receivable and its
related Contract, any finance, interest or similar charges owing by an
Obligor pursuant to such Contract, including, without limitation, any charge
payable in connection with any extension or adjustment under such Contract
(without regard to whether any such extension or adjustment is permitted
under the terms of this Agreement).
"Financed Vehicle" means an automobile or light-duty truck, together
with all accessions thereto, securing an Obligor's indebtedness under the
applicable Contract.
"Full Payoff" has the meaning assigned to that term in Section 5.2.
"Hedging Proceeds" means any amount payable by CFC to the Purchaser
under any interest rate cap agreement made between CFC and the Purchaser with
respect to this Agreement.
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"Insolvency Event" means, with respect to a specified Person, the
occurrence of an initial bankruptcy event or the commencement by or against
such Person of any other proceeding under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the
commencement of any proceeding seeking the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or similar
official for such Person or for any substantial part of such Person's
property, or the winding up or liquidation of such Person, 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 any action by such Person in furtherance of any of the
foregoing.
"Insurance Policy" means (i) any comprehensive, collision, fire,
theft or other insurance policy maintained by an Obligor in which the Seller
or 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 amounts of cash paid by the
Purchaser to the Seller for each Purchase, minus 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.
"Liquidity Facilities" means each of the committed loan facilities,
lines of credit and other financial accommodations available to the Purchaser
to support the liquidity of the Purchaser's commercial paper notes.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the monies collected in respect thereof, from whatever source,
net of the sum of any amounts expended by the Servicer in connection with
such liquidation and any amounts required by law to be remitted to the
Obligor on such Liquidated Receivable.
"Net Loss" for a month means the sum of the Principal Balances of
all Purchased Receivables which are Defaulted Receivables for such month,
minus any Liquidation Proceeds received during such month, plus any losses
resulting from disposition expenses paid during such month.
"Net Loss Ratio" means, as of the last day of any month, a fraction,
expressed as a percentage, the numerator of which is the product of (i) the
sum of the Net Loss for such month and the five immediately preceding months,
to the extent this Agreement was in effect during such months, and (ii) a
factor of 12 divided by the number of months 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
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the month and the first day of the five immediately preceding months, to the
extent this Agreement was in effect during such months.
"Obligor" means any Person which is obligated to make payment on a
Receivable.
"Outstanding Precomputed Advances" on the Precomputed Receivables
means the sum, as of the close of business on the last day of a Collection
Period, of all Precomputed Advances as reduced as provided in Section 5.3.
"Partial Payoff" has the meaning assigned to that term in
Section 5.2.
"Payahead" on a Receivable that is a Precomputed Receivable means
the amount, as of the close of business on the last day of a Collection
Period, computed in accordance with Section 5.2 with respect to such
Receivable.
"Payahead Balance" on a Receivable that is a Precomputed Receivable
means the sum, as of the close of business on the last day of a Collection
Period, of all Payaheads made by or on behalf of the Obligor with respect to
such Precomputed Receivable, as reduced by applications of previous Payaheads
with respect to such Precomputed Receivable pursuant to Sections 5.2 and 5.3.
"Performance Guarantor" means CFC and its successors and assigns.
"Person" means any corporation, natural person, firm, joint venture,
partnership, trust, unincorporated organization, enterprise, government or
any department or agency of any government.
"PPSA" means the Personal Property Security Act (Ontario) or the
comparable legislation of the other provinces of Canada including, in Quebec,
the Civil Code of Quebec, and in Newfoundland and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island, the
respective Assignments of Book Debts Acts of such provinces.
"Precomputed Advance" means the amount, as of the close of business
on the last day of a Collection Period, which the Servicer is required to
advance on the related Precomputed Receivables pursuant to Section 5.3.
"Precomputed Receivable" means any Receivable under which the
portion of a payment allocable to earned interest (which may be referred to
in the related Contract as an add-on finance charge) and the portion
allocable to the Amount Financed is determined according to the sum of
periodic balances or the sum of monthly balances or any equivalent method or
which is a monthly actuarial receivable.
"Prime Rate" means the rate per annum on any day publicly announced
by Bank of
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Montreal as its "prime rate" for Canadian dollar commercial loans made by it
in Canada.
"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.
"Program Fee" has the meaning assigned to that term in
Section 3.1.2.
"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 Collection 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, in respect of the initial Purchase, December
18, 1996, and in respect of any subsequent Purchase, the date set out on the
related Purchase Request, in each case being 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 3.1.1.
"Purchase Investment" means, in respect of a Purchase, the aggregate
amount of cash paid by the Purchaser to the Seller for such Purchase.
"Purchase Principal Balance" means, in respect of a Purchase, the
aggregate Principal Balance of all Receivables subject to the related
Purchase Request.
"Purchase Request" means the request in the form of Exhibit B hereto
to be provided by the Seller in accordance with Section 2.1.
"Purchased Assets" means all Purchased Receivables purchased by the
Purchaser under this Agreement together with the Related Security and
Collections from and after the Cut-Off Date relating to such Purchased
Receivables and all proceeds of the foregoing.
"Purchased Receivable" means an Eligible Receivable being sold to
Purchaser under this Agreement arising under a Contract listed on a Schedule
of Contracts delivered to the Administrative Agent prior to a Purchase Date.
"Purchaser" means Canadian Master Trust, a trust established
pursuant to the laws of the Province of Ontario and its successors and
assigns.
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"Purchaser's Anticipated Recovery" means the sum of the Investment
on a Purchase Date plus the aggregate of all amounts required to be remitted
to the Purchaser pursuant to Section 5.4(i).
"Rating Agency" means Dominion Bond Rating Service Limited or its
successor.
"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 Obligor, manufacturer or Dealer in respect of
such Financed Vehicle,
(ii) all guarantees or 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 or other
instruments 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
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amount not less than the market value of the applicable Financed Vehicle,
and (iv) that has the Seller or the Servicer noted as the loss payee thereon.
"Reserve" means an amount in the form of Receivables having an
aggregate Principal Balance equal to 5.0% of the Investment as of the initial
Purchase Date and thereafter means the amount specified in a Purchase
Request.
"Sale Documents" means this Agreement 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 a list of Contracts delivered to the
Administrative Agent in connection with a Purchase, such list being in
microfiche, paper or electronic format.
"Seller" means Chrysler Credit Canada Ltd., a Canada corporation and
its successors and permitted assigns.
"Servicer" means the Seller 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 that term in
Section 3.1.3.
"Servicer Report" means the report in the form of Exhibit A hereto
to be provided by the Servicer in accordance with Section 5.5, which report
shall include a calculation of the Delinquency Ratio and the Net Loss Ratio
for the applicable month.
"Settlement Date" means the last day of each month following a
related Settlement Period (or if such day is not a Business Day, the
preceding Business Day).
"Settlement Period" means a calendar month, provided, that, for
purposes of the initial Settlement Period for a Purchase, such period shall
commence on the Cut-Off Date and end on the last calendar day of the calendar
month in which the Cut-Off Date occurs.
"Significant Event" has the meaning assigned to that term in
Section 8.2.(b).
"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 or 366, as
the case may be, and the remainder of such payment is allocable to principal.
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"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Structuring Fee" has the meaning assigned to that term in
Section 4.1.10.
ARTICLE II: SALE AND PURCHASE
SECTION 2.1. Sale and Purchase. Upon the terms and subject to the
conditions set forth herein, from time to time the Seller may, by delivering
a Purchase Request to the Purchaser prior to the date of a requested
purchase, effective as of the Purchase Date, request the Purchaser to
purchase all of the Seller's right, title and interest to and in the
Purchased Receivables specified in the Schedule of Contracts accompanying the
Purchase Request, together with the Related Security and Collections from and
after the Cut-Off Date relating to such Purchased Receivables and all
proceeds of the foregoing. If the Purchaser in its sole discretion agrees to
such purchase, then subject to the consent of the Rating Agency, the Seller
shall sell, transfer and assign, and the Purchaser shall purchase and accept,
the transfer and assignment pursuant to an Assignment of all of the Seller's
right, title and interest to and in the Purchased Receivables relating to
such Purchase Request, together with the Related Security and Collections
relating to such Purchased Receivables and all proceeds of the foregoing (the
foregoing sale, transfer and assignment being referred to as a "Purchase").
SECTION 2.2. Purchase Price. The aggregate purchase price payable by
the Purchaser for all Purchases shall be the sum of the Purchase Investment
for each Purchase plus the amount, if any, by which aggregate Collections
exceed the Purchaser's Anticipated Recovery. On each Purchase Date, the
Purchaser shall pay to the Seller cash in an amount equal to the Purchase
Principal Balance as of the Cut-Off Date minus the Reserve. The balance of
the purchase price in respect of each Purchase shall be paid after the
Investment has been reduced to zero as Collections are received by the
Purchaser provided that such balance shall be paid forthwith upon the sale by
the Purchaser of Purchased Receivables pursuant to Section 2.3.
SECTION 2.3. Seller's Optional Termination. The Seller shall have
the right, on five Business Days' written notice to the Administrative Agent
expiring on a Settlement Date, at any time following the reduction of the
Aggregate Principal Balance hereunder to a level that is less than ten
percent (10%) of the sum of (i) the Aggregate Principal Balance on the
Settlement Date immediately prior to the most recent Purchase Date and (ii)
the Purchase Principal Balance on the last Purchase Date and is greater than
the aggregate of the Investment outstanding after the application of
Collections remitted on that Settlement Date and all other amounts payable
(whether due or accrued) hereunder or under any other Sale Document, 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
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an amount equal to the Aggregate Principal Balance as at the last day of the
preceding Settlement Period. The assignment giving effect to 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 except as to the
Purchaser's unencumbered title to the said Purchased Receivables, Related
Security and Collections. The Seller shall pay and account for the amount so
payable as a Collection with respect to the Purchased Receivables.
SECTION 2.4 Repurchase of Ineligible Receivables. In the event the
Seller is in breach of a representation and warranty as set forth in Article
VII or of the covenant set forth in Section 8.3(c) made with respect to a
Purchased Receivable, then on the Settlement Date following the Settlement
Period in which such breach is discovered the Seller shall repurchase each
Purchased Receivable affected by such breach for the Purchase Amount thereof.
The Seller shall pay and account for the amount so payable as a Collection
with respect to such Purchased Receivables.
ARTICLE III: FEES AND EXPENSES
SECTION 3.1. Determination of Carrying Costs. The following rates
shall be utilized in calculating the amount of Carrying Costs to be
distributed each Settlement Period out of Collections of Purchased
Receivables.
SECTION 3.1.1. Purchase Discount.
(a) A Purchase Discount equal to the weighted average of the
following (net of any Hedging Proceeds in respect of the related Settlement
Period):
(i) 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 (A) purchase
receivables, or extend financing secured thereby,
at a fixed interest rate or (B) conduct any
arbitrage activities of the Purchaser), converted
to an annual yield-equivalent rate on the basis of
a 365-day year;
(ii) 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 (A) and (B) of paragraph (i)
above), on the basis of a 365-day year; and
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(iii) 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 Purchaser 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 borrowing 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 shall be
equal to one-half of one per cent (0.50%) per
annum in excess of the greater of (A) the rate of
interest per annum for overnight interbank loans
in respect of Canadian dollar funds having a term
of one day, and (B) the Banker's Acceptance Rate
for the applicable Settlement Period.
(b) Two calendar days prior to the end of each Settlement Period (or
if such day is not a Business Day, the immediately preceding Business Day),
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 Purchaser pursuant to Section 5.4 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 Purchaser pursuant to
Section 5.4 shall be decreased by an amount equal to the Carrying Costs
True-up Amount.
SECTION 3.1.2. Program Fee. A Program Fee equal to 0.18% per annum
in respect of the initial Purchase and following each Purchase the amount per
annum specified in the Purchase Request effective as of the date set out in
the Purchase Request, in each case which shall include all annual expenses,
including but not limited to legal fees and disbursements, audit fees, filing
and administrative fees, liquidity and credit enhancement fees, and dealer
commissions.
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SECTION 3.1.3. Servicer Fee. In respect of any period during which
the Seller is not the Servicer, a Servicer Fee in respect of each Collection
Period, not to exceed 1.0% per annum of the Aggregate Principal Balance on
the first day of such Collection Period, which shall be remitted by the
Purchaser to the Servicer.
SECTION 3.2. 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 1.0% per annum in
excess of the Prime Rate.
SECTION 3.2.1. Interest Act (Canada). For the purposes of disclosure
under the Interest Act (Canada) the equivalent annual rate to any rate of
interest or discount calculated on the basis of a period less than a year is
the rate so calculated multiplied by a fraction the numerator of which is the
number of days in the calendar year and the denominator of which is the
number of days in such period.
ARTICLE IV: CONDITIONS PRECEDENT TO PURCHASE
SECTION 4.1. Conditions Precedent to Purchase. The following
conditions must be satisfied in respect of each Purchase:
SECTION 4.1.1. Absence of Liens. The Seller shall certify that all
Purchased Receivables and all proceeds thereof are free and clear of any
Adverse Claim.
SECTION 4.1.2. PPSA Registrations. The Administrative Agent will
have received verification statements, or other documents reasonably
requested by the Administrative Agent, to evidence the recording of the
Purchaser's interest in the Purchased Receivables, the Related Security and
the Collections under the applicable PPSA.
SECTION 4.1.3. Schedule of Contracts. The Administrative Agent will
have received a Schedule of Contracts.
SECTION 4.1.4. Seller Officer's Certificate. The Administrative
Agent will have received a certificate of an officer of the Seller attesting
to:
(a) the resolution of the directors of the Seller authorizing
this Agreement and the execution by the Seller of the Sale
Documents to be executed by the Seller;
(b) the names and specimen signatures of the officers of the
Seller authorized to execute
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the Sale Documents to be executed by the Seller; and
(c) the completeness and correctness of the articles of
incorporation and by-laws of the Seller attached thereto.
SECTION 4.1.5. CFC Officer's Certificate. The Administrative Agent
will have received a certificate of an officer of CFC attesting to:
(a) the resolution of the Directors of CFC (or the executive
committee thereof) authorizing the guarantee of CFC
contained in this Agreement and the execution by CFC of the
Sale Documents to be executed by CFC;
(b) the names and specimen signatures of the officers of CFC
authorized to execute the Sale Documents to be executed by
CFC; and
(c) the completeness and correctness of the restated articles
of incorporation and by-laws of CFC attached thereto.
SECTION 4.1.6. Legal Opinion of Counsel to the Seller. The
Administrative Agent will have received an opinion or opinions from counsel
to the Seller in the form and as to such matters as the Administrative Agent
or the Purchaser may reasonably request.
SECTION 4.1.7. Good Standing Certificates. The Administrative Agent
will have received certificates satisfactory to the Administrative Agent
evidencing the legal existence and good standing of the Seller and CFC.
SECTION 4.1.8. Representations and Covenants. On and as of the date
of each Purchase (i) the representations and warranties of the Seller set
forth in Article VII shall be true and correct with the same effect as if
made on such date and (ii) the Seller shall be in compliance with the
covenants set forth in Article VIII. The Seller, 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).
SECTION 4.1.9. 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.
SECTION 4.1.10. Upfront Fee. The Seller shall have paid at closing
(i) a fee to the Administrative Agent in the amount of $20,000 in respect of
the initial Purchase and in respect of a subsequent Purchase the amount, if
any, specified in the Purchase Request, in each case which shall include all
upfront expenses, including but not limited to legal fees and disbursements,
filing and administrative fees, rating agency fees, liquidity and credit
enhancement fees incurred with
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respect to such Purchases and (ii) an interest rate cap fee to the Purchaser
in the amount of $616,000 in respect of the initial Purchase and in respect
of a subsequent Purchase the amount specified in the Purchase Request, in
each case in respect of the agreement referred to in the definition of
Hedging Proceeds.
SECTION 4.1.11. Advance Ruling Certificate. The Seller shall have
obtained an Advance Ruling Certificate in connection with the sale of the
Purchased Receivables hereunder pursuant to the Competition Act (Canada).
ARTICLE V: SETTLEMENT PROCEDURES
SECTION 5.1. Collections. On the last day of each Settlement Period,
or if such last day is not a Business Day, then on the next preceding
Business Day, the Servicer shall remit to the Administrative Agent that
portion of Collections for such Settlement Period which is not greater than
the amount of Carrying Costs for the related Settlement Period, as determined
in accordance with Section 3.1. Thereafter, the Servicer shall remit to the
Administrative Agent the balance, if any, of such Collections on the
Settlement Date relating to such Settlement Period. If the Seller is the
Servicer on the Business Day immediately following the date on which the long
term debt rating of CFC by ▇▇▇▇▇'▇ Investor Services, Inc. or any successor
thereof falls below Baa3 (or its then equivalent), and until such time as
CFC's rating is increased by ▇▇▇▇▇'▇ Investor Services, Inc. to at least Baa3
(or its then equivalent), the Servicer shall, within two Business Days of
receipt, pay all Collections received by the Servicer to the Administrative
Agent.
SECTION 5.2. Application of Collections. All Collections for each
Collection Period shall be applied by the Servicer as follows: With respect
to each Receivable, payments by or on behalf of the Obligor shall be applied
first, in the case of Precomputed Receivables, to reduce Outstanding
Precomputed Advances as described in Section 5.3. Next, any excess shall be
applied, in the case of Precomputed Receivables, to the scheduled payment
and, in the case of Simple Interest Receivables, to interest and principal in
accordance with the Simple Interest Method. With respect to Precomputed
Receivables, to the extent that the sum of any remaining excess and the
Payahead Balance can be applied to prepay the Precomputed Receivable in full,
such remaining excess shall constitute a full payoff of such Precomputed
Receivable (a "Full Payoff"). To the extent that the sum of any remaining
excess, the Payahead Balance and one payment can be applied to prepay the
Precomputed Receivable in full, such remaining excess shall constitute a
partial payoff of such Precomputed Receivable ( a "Partial Payoff").
Otherwise, any such remaining excess payments shall constitute a Payahead and
shall increase the Payahead Balance.
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SECTION 5.3. Advances.
As of the close of business on the last day of each
Collection Period, if such payments by or on behalf of the Obligor on a
Precomputed Receivable shall be less than the scheduled payment, the Payahead
Balance shall be applied by the Servicer to the extent of the shortfall and
such Payahead Balance shall be reduced accordingly. Next, the Servicer shall
advance any remaining shortfall (such amount, a "Precomputed Advance"), to
the extent that the Servicer, at its sole discretion, shall determine that
the Precomputed Advance shall be recoverable from the Obligor, the Purchase
Amount, Liquidation Proceeds or proceeds of any other Precomputed
Receivables. With respect to each Precomputed Receivable, the Precomputed
Advance shall increase Outstanding Precomputed Advances. Outstanding
Precomputed Advances shall be reduced by subsequent payments by or on behalf
of the Obligor, collections of Liquidation Proceeds in respect of such
Precomputed Receivables or payments made by the Seller in accordance with
Section 2.4 with respect to such Precomputed Receivables.
If the Servicer shall determine that an Outstanding Precomputed
Advance with respect to any Precomputed Receivable shall not be recoverable
as aforesaid, the Servicer shall be reimbursed from any collections made on
other Precomputed Receivables and Outstanding Precomputed Advances with
respect to such Precomputed Receivables shall be reduced accordingly.
SECTION 5.4. Application of Collections and Hedging Proceeds on
Settlement Dates. Subject to Section 5.1, the Servicer will, by 12:00 noon
(Toronto time) on each Settlement Date, from Collections received during the
preceding Settlement Period, pay to the Administrative Agent and the
Administrative Agent shall on each Settlement Date distribute such
Collections 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 3.1.1(b)) and (ii)
second, all remaining Collections as a reduction to Investment. CFC will
also, by the same time on each Settlement Date, pay to the Administrative
Agent all Hedging Proceeds payable with respect to such preceding Settlement
Period and the Administrative Agent shall distribute such Hedging Proceeds to
the Purchaser.
SECTION 5.5. 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 the seventh Business Day
following the end of such Settlement Period.
ARTICLE VI: SERVICING OF RECEIVABLES
SECTION 6.1.1 Power of Attorney. The Seller hereby appoints the
Purchaser, the Administrative Agent, any officer of the trustee of the
Purchaser or any officer of the Administrative Agent from time to time, with
full power of substitution, as its true and lawful attorney-in-fact with
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full irrevocable power and authority, coupled with an interest, in the place
and stead of the Seller and in the name of the Seller or in the name of any
such attorney, from time to time in the Purchaser or Administrative Agent's
discretion, as the case may be, for the purpose of enforcing the Receivables,
the related Contracts and the Related Security.
SECTION 6.1.2 Appointment and Duties of Servicer. The Purchaser
hereby appoints the Seller as the Servicer and the Seller hereby accepts such
appointment. The Servicer, for the benefit of the Purchaser (to the extent
provided herein) and without payment to it of any fee in respect thereof so
long as the Seller is the Servicer, shall manage, service, administer, make
collections and discharge Adverse Claims 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 shall, at the Servicer's expense and direction, take
steps to enforce such Receivable, including bringing suit in its name or the
name of the Purchaser. The 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 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 two
Business Days (after written notice thereof from
the Purchaser if the Purchaser or the
Administrative Agent has actual notice of such
failure prior to the expiry of two Business Days
after the occurrence of such failure) or such
longer period as may be approved in writing by the
Rating Agency;
(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 and, provided that such representation
or warranty is capable of being subsequently made
true and correct, which continues to be incorrect
in any material respect for a period of thirty-two
days after the date on which written notice
thereof requiring the same to be remedied has been
given to the Servicer by the Purchaser or the
Administrative Agent or such longer period as may
be approved in writing by the Rating Agency; This
document, in part and in whole, is confidential
and proprietary. Any duplication, dissemination,
or use of any portion of this document without the
express written consent of Chrysler Credit Canada
Ltd. is strictly prohibited.
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(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
thirty-two days after the date on which written
notice of such failure requiring the same to be
remedied has been given to the Servicer by the
Purchaser or the Administrative Agent or such
longer period as may be approved in writing by the
Rating Agency; 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 the Seller (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 the 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
and the successor Servicer shall have agreed to perform the duties and
obligations of the Servicer pursuant to the terms hereof and to be bound by
the terms of this Agreement.
(b) If the Seller is removed as Servicer, the Seller shall transfer
to any successor Servicer designated by the Purchaser all records,
correspondence and documents (including computer software) 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 the Seller to the
use of such software for the purpose of discharging the obligations of the
successor Servicer under or in connection with the Sale Documents.
(c) Following the removal of the Seller 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, and (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 (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 applicable PPSA and other applicable laws, which rights shall be
cumulative.
SECTION 6.3. Custody of Receivable Files. To assure uniform quality
in servicing the Purchased Receivables and to reduce administrative costs,
the Purchaser hereby irrevocably appoints the Servicer, and the Servicer
hereby accepts such appointment, to act for the benefit of the
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Purchaser 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 of each Purchase 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) such documents that the Servicer 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 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 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 and the Servicer 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 initial Cut-Off
Date and shall continue in full force and effect until terminated pursuant to
this Section 6.5. If the Seller shall cease to be the 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 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. The
Seller makes in its capacity as Seller and Servicer the following
representations and warranties to the Purchaser as of the date hereof and as
of each Purchase Date:
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(a) It is a corporation duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified in good standing 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 of
the Sale Documents, and the Seller's use of the proceeds of
the Purchase, are within the Seller's corporate powers,
have been duly authorized by all necessary corporate
action, do not contravene (i) the Seller's articles of
incorporation or by-laws or (ii) any law or contractual
restriction binding on or affecting the Seller, 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 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 or other documents
referred to in Section 4.1.2 and except for compliance with
Section 4.1.11.
(d) Each Sale Document constitutes the legal, valid and binding
obligation of the Seller enforceable in accordance with its
terms.
(e) There is no pending or threatened action or proceeding
affecting the Seller 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 interests of the Purchaser in the Purchased
Assets.
(f) The Seller is the legal and beneficial owner of the
Receivables, the Related Security and Collections, each
Purchased Receivable will be an Eligible Receivable on the
related Purchase Date and the Receivables and Collections
are free and clear of any Adverse Claim, except as created
by this Agreement; upon consummation of a Purchase, the
Purchaser will acquire a valid ownership interest in the
Purchased Receivables and in the Related Security and the
Collections with respect thereto, and the Receivables and
Collections will be free and clear of any Adverse Claim
except as created by this Agreement.
(g) The information to be provided by the Seller to the
Servicer for use in each Servicer Report prepared under
Section 5.5 and all information and Sale Documents
furnished
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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.
(h) The Seller is treating the sale and assignment to the
Purchaser under this Agreement of the Purchased
Receivables, Related Security and Collections as a sale for
all purposes.
ARTICLE VIII: COVENANTS
SECTION 8.1. Affirmative Covenants of the Seller. Until the
Investment is reduced to zero and all other amounts to be remitted to the
Purchaser hereunder have been paid in full, the Seller in its capacity as
Seller and Servicer covenants and agrees with the Purchaser that it will,
unless the Purchaser has otherwise consented in writing:
(a) comply with all laws, rules, regulations and orders
applicable to it and all or any of its businesses and
properties, except where the failure to do so would not
materially adversely affect the Purchaser's interest
hereunder or its ability to perform its obligations
hereunder;
(b) maintain its existence in the jurisdiction of its
incorporation, and qualify and remain qualified in good
standing in each jurisdiction where the failure to be so
qualified could materially adversely affect its ability to
perform its obligations hereunder;
(c) 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);
(d) at any time and from time to time, after the occurrence of
a Servicer Default which is continuing, during regular
business hours, permit the Administrative Agent, its agents
or representatives upon five Business Days' prior written
notice to (i) examine and make copies of all Receivable
Files in its possession (or under its control), and (ii)
visit its zone offices for the purpose of examining such
Receivable Files and discussing matters relating to the
Related Security and its performance under the Purchased
Receivables or hereunder with any of its officers or
employees having knowledge of such matters;
(e) at its expense timely and fully perform and comply with all
material provisions and covenants required to be observed
by the Seller under the Contracts related to the Purchased
Receivables;
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(f) comply in all material respects with the Credit and
Collection Policy in regard to each Purchased Receivable
and any Contract related to such Receivable;
(g) make all payments payable by it to government agencies in
accordance with applicable law and others where a statutory
lien or deemed trust might arise having priority over the
Purchaser's interest in any Purchased Receivables and
Related Security;
(h) take all steps necessary to obtain the discharge of any
financing statement, registration, recording, filing or
other document similar in effect relating to any Purchased
Receivables, Related Security or Collections except those
in favour of the Purchaser in accordance herewith or
subordinate to the rights of the Purchaser thereunder; and
(i) treat the sale and assignment to the Purchaser under this
Agreement of the Purchased Receivables, Related Security
and Collections as a sale for all purposes.
SECTION 8.2. Reporting Requirements of the Servicer. Until the
Investment is reduced to zero and all amounts to be remitted to the Purchaser
hereunder have been paid in full, the Seller in its capacity as Seller and
Servicer covenants and agrees with the Purchaser that it will, unless the
Purchaser shall otherwise consent in writing, furnish to the Purchaser:
(a) the Servicer Report as required under Section 5.5;
(b) as soon as possible, and in any event within five Business
Days after the Servicer becomes aware thereof, a
description of each event or condition (each such event or
condition being referred to as a "Significant Event") and,
if applicable, the steps being taken with respect thereto
by the Person(s) affected thereby that is: (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 as the
Purchaser may from time to time reasonably request.
SECTION 8.3. Negative Covenants of the Servicer. Until the
Investment is reduced to zero and all other amounts to be remitted to the
Purchaser hereunder have been paid in
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full, the Servicer covenants and agrees with the Purchaser that it will not,
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 any
Adverse Claim upon or with respect to any Purchased
Receivables, Related Security or any Collections or assign
any right to receive income in respect thereof or suffer to
exist any Adverse Claim upon or with respect to any
Purchased Receivables or any Collections;
(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; or
(c) extend the term of any Purchased Receivable if such
extension would be adverse to the Purchaser.
SECTION 8.4. Protection of the Purchaser's Interest. Until the
Investment is reduced to zero and all other amounts to be remitted to the
Purchaser hereunder have been paid in full, the Seller in its capacity as
Seller and Servicer covenants and agrees with the Purchaser 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 evidence and protect the validity and
enforceability of the Purchaser's interests in the Purchased Receivables, the
Related Security and the Collections and to enable the Administrative Agent
and/or the Purchaser to exercise or enforce any of their respective rights
under the Sale Documents. Without limiting the generality of the foregoing,
the Seller will: (i) on or prior to the date of each Purchase, ▇▇▇▇ its
master data processing records relating to the Purchased Receivables relating
to such Purchase with a legend describing the Purchaser's interests therein;
and (ii) upon the request of the Administrative Agent, execute and file such
financing statements or amendments thereto as may be requested by the
Administrative Agent.
ARTICLE IX: ADMINISTRATIVE AGENT
SECTION 9.1. Appointment of Administrative Agent. The Purchaser has
appointed ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. 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.
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SECTION 9.1.1. Replacement of Administrative Agent. The Purchaser
may, at any time in its discretion but at no additional expense to the
Seller, remove the Administrative Agent and appoint a new Administrative
Agent, which shall have the duties described in Section 9.1.
ARTICLE X: COVENANTS OF CFC
SECTION 10.1. Covenants of CFC. Until the Investment is reduced to
zero and all other amounts to be remitted to the Purchaser hereunder have
been paid in full, CFC covenants and agrees with the Purchaser that it will,
unless the Purchaser has otherwise consented in writing:
(a) comply with all laws, rules, regulations and orders
applicable to it and all or any of its businesses and
properties, except where the failure to do so would not
materially adversely affect the Purchaser's interest
hereunder or its ability to perform its obligations
hereunder;
(b) preserve and maintain its corporate existence, except in
the case of a merger or other action permitted under the
Short Term Revolving Credit Agreement and the Long Term
Revolving Credit Agreement each dated as of April 24, 1997
between it and Chemical Bank, as administrative agent and
Royal Bank of Canada, as Canadian administrative agent, and
the several banks party thereto, as amended, modified,
supplemented or restated from time to time, and where the
continuing or surviving entity assumes CFC's obligations
hereunder;
(c) furnish to the Purchaser, unless the Seller has previously
complied with Section 8.2(b), as soon as possible and in
any event within five Business Days after CFC becomes aware
of the occurrence of each Significant Event, a statement of
an officer of CFC setting forth details as to such
Significant Event and the action which CFC or the Seller or
Servicer has taken or is proposing to take with respect
thereto;
(d) at any time following the occurrence of a Significant Event
which is continuing, ensure the due performance of all of
the obligations of the Seller (including those arising in
its capacity as Servicer, if the Seller is at such time the
Servicer) under this Agreement and, in the event of any
failure of the Seller to perform such obligations, assume
all of the liabilities of the Seller (including those
arising in its capacity as Servicer, if the Seller is at
such time the Servicer) hereunder;
(e) make all payments to be made by it in the performance of
its obligations hereunder without set-off or counterclaim
and without deduction or withholding for or on account of
any present or future taxes, levies, imposts, duties,
charges, assessments or fees of any nature (including any
interest, penalties and additions thereto) unless such
deduction or withholding is required by any applicable
treaty, law, rule or
- 26 -
regulation (as modified by the practice of any relevant
governmental revenue authority then in effect), in which
case it shall pay to the Purchaser, in addition to any
payment to which the Purchaser is otherwise entitled under
this Agreement, such additional amount as is necessary to
ensure that the net amount actually received by the
Purchaser will equal the full amount the Purchaser would
have received had no such deduction or withholding been
required; and
(f) continue to hold such number of shares in the capital of
the Seller such that the Seller is at all times a
subsidiary of CFC.
ARTICLE XI: MISCELLANEOUS
SECTION 11.1. Amendments, Etc. 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, Etc. 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 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 11.4. Binding Effect; Assignability. This Agreement shall be
binding upon and enure to the benefit of the Seller, the Servicer, CFC, 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, the consent of the Seller
(which consent shall not be unreasonably withheld) shall be required.
SECTION 11.5. Governing Law. This Agreement and the Sale Documents
shall be governed by, and construed in accordance with, the laws of the
province of Ontario and the federal laws of Canada applicable therein.
- 27 -
SECTION 11.6. Confidentiality. The Purchaser and the Administrative
Agent agree to maintain the confidentiality of any information regarding the
Seller obtained in connection with this Agreement which is not publicly
available, but the Purchaser and the Administrative Agent may, with notice to
the Seller, reveal such information, (a) to applicable rating agencies,
liquidity providers and credit enhancement providers, (b) as necessary or
appropriate in connection with the administration or enforcement of this
Agreement or its funding of any Purchase under this Agreement, (c) as
required by law, government regulation, court proceeding or subpoena or (d)
to bank regulatory agencies and examiners.
SECTION 11.7. 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.
CHRYSLER CREDIT CANADA LTD.
as Seller and Servicer
By: "▇.▇. ▇▇▇▇▇▇▇▇"
------------------------------------
Title: Vice President and Treasurer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ Tower, Suite 400
Mississauga, Ontario
L4W 4V9
Attention: Assistant Secretary
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Assistant Secretary
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
- 28 -
CHRYSLER FINANCIAL CORPORATION
as Performance Guarantor
By: "▇.▇. ▇▇▇▇▇▇▇▇"
--------------------------
Title: Vice President and Treasurer
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Assistant Secretary
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
- 29 -
CANADIAN MASTER TRUST
by its Administrative Agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ INC.
as Purchaser
By: "▇. ▇▇▇▇▇▇▇"
-----------------------------
Title: Securitization and Structured Finance
By: "▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇"
-----------------------------
Title: Securitization and Structured Finance
Address: Canadian Master Trust
c/o Nesbitt ▇▇▇▇▇ Inc.
3rd Floor Podium
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Managing Director,
Securitization and Structured Finance
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
- 30 -
▇▇▇▇▇▇▇ ▇▇▇▇▇ INC.,
as Administrative Agent
By: "▇. ▇▇▇▇▇▇▇"
--------------------------------
Title: Securitization and Structured Finance
By: "▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇"
--------------------------------
Title: Securitization and Structured Finance
Address: 3rd Floor Podium
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Managing Director,
Securitization and Structured Finance
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
EXHIBIT B
Form of Purchase Request
Purchase Request
To: Canadian Master Trust
c/o Nesbitt ▇▇▇▇▇ Inc.
3rd Floor Podium
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
This Purchase Request is delivered to you pursuant to Section 2.1 of a
receivables sale agreement dated as of December 18, 1996, as amended and
restated as of November 10, 1997 (the "Receivables Sale Agreement") between
Chrysler Credit Canada Ltd., as Seller, and Canadian Master Trust, as
Purchaser. All capitalized terms used herein, but not otherwise defined
herein, shall have the meaning ascribed to them in the Receivables Sale
Agreement.
The Seller hereby requests the Purchaser to purchase on the date indicated
below the Eligible Receivables, particulars of which are indicated on the
attached schedule, in accordance with and subject to the terms and conditions
of the Receivables Sale Agreement.
Purchase Date:
Cut-Off-Date:
Purchase Principal Balance:
Reserve:
Cash component of purchase price:
Program Fee:
Structuring Fee:
Interest rate cap fee:
Dated the day of
CHRYSLER CREDIT CANADA LTD.
By:______________________________
(Authorized Officer)
EXHIBIT C
Form of Assignment
ASSIGNMENT OF PURCHASED ASSETS
Reference is made to the Amended and Restated Receivables Sale
Agreement dated as of November 10, 1997 (the "Receivables Sale Agreement")
between Chrysler Credit Canada Ltd. , as seller and servicer (the "Seller"),
Chrysler Financial Corporation, Canadian Master Trust, as purchaser by its
administrative agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. (the "Purchaser") and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Inc.
Words and terms with initial capital letters shall have the meaning
given to them in the Receivables Sale Agreement unless otherwise defined
herein.
FOR VALUE RECEIVED, the Seller does hereby sell, transfer and assign
unto the Purchaser, all of the Seller's right, title and interest to and in
the Purchased Assets details of which are contained in Schedule "A" hereto.
This assignment is made without recourse but pursuant to and upon all
of the representations, warranties, covenants and agreements on the part of
the undersigned contained in the Receivables Sale Agreement and is subject
to, governed by, and construed in accordance with, the Receivables Sale
Agreement and the laws of Ontario. In the event of any inconsistency or
conflict between the Receivables Sale Agreement and this assignment, the
provisions of the Receivables Sale Agreement shall govern.
IN WITNESS WHEREOF this assignment has been executed on the day of
November, 1997.
CHRYSLER CREDIT CANADA LTD.
Per:______________________________
Name:
Title:
CANADIAN MASTER TRUST
by its Administrative Agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ INC.
Per:______________________________
Name:
Title: