CONFORMED
COPY
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EXHIBIT 10-CCCCC
RECEIVABLES SALE AGREEMENT
among
PREMIER RECEIVABLES L.L.C.
as Seller,
CHRYSLER FINANCIAL CORPORATION
as Servicer,
WINDMILL FUNDING CORPORATION
as Purchaser
and
ABN AMRO BANK N.V.
as Administrative Agent
Dated as of December 22, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..........................................1
ARTICLE II THE SALE AND PURCHASE...............................10
Section 2.1. Sale and Purchase...............................10
Section 2.2. Purchase Price..................................10
Section 2.3. CFC's Optional Termination......................10
ARTICLE III FEES AND EXPENSES...................................11
Section 3.1. Determination of Carrying Costs.................11
Section 3.1.1. Purchase Discount...............................11
Section 3.1.2. Servicer Fee....................................13
Section 3.2. Interest on Unpaid Amounts......................13
ARTICLE IV CONDITIONS PRECEDENT TO PURCHASE....................13
Section 4.1. Conditions Precedent to Purchase................13
Section 4.1.1. Absence of Liens................................13
Section 4.1.2. Financing Statements............................13
Section 4.1.3. Schedule of Contracts...........................13
Section 4.1.4. Seller Resolutions..............................13
Section 4.1.5. Servicer Resolutions............................14
Section 4.1.6. Legal Opinion of Counsel to the Seller
and the Servicer...............................14
Section 4.1.7. Good Standing Certificates......................14
Section 4.1.8. Representations and Covenants...................14
Section 4.1.9. Other Documents.................................14
Section 4.1.10. Upfront Fee.....................................15
ARTICLE V SETTLEMENT PROCEDURES...............................15
Section 5.1. Collections.....................................15
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Section 5.2. Application of Collections......................15
Section 5.3. Application of Collections on
Settlement Dates...............................15
Section 5.4. Servicer Report.................................15
Section 5.5. Purchase by Servicer Upon Breach................15
ARTICLE VI SERVICING OF RECEIVABLES............................16
Section 6.1. Appointment and Duties of Servicer..............16
Section 6.2. Replacement of Servicer.........................16
Section 6.3. Custody of Receivable Files.....................18
Section 6.4. Duties of Servicer as Custodian.................18
Section 6.5. Effective Period and Termination................18
ARTICLE VII REPRESENTATIONS AND WARRANTIES......................19
Section 7.1. Representations and Warranties
of the Seller and the Servicer.................19
ARTICLE VIII COVENANTS...........................................20
Section 8.1. Affirmative Covenants of the Seller
and the Servicer...............................20
Section 8.2 Reporting Requirements of the Servicer..........21
Section 8.3. Negative Covenants of the Seller
and the Servicer...............................21
Section 8.4. Protection of the Purchaser's Interest..........22
Section 8.5. Servicer Indemnities............................22
ARTICLE IX ADMINISTRATIVE AGENT................................23
Section 9.1. Appointment of Administrative Agent.............23
Section 9.1.1. Replacement of Administrative Agent.............23
ARTICLE X MISCELLANEOUS.......................................23
Section 10.1. Amendments, Etc.................................23
Section 10.2. Notices, Etc....................................23
Section 10.3. No Waiver; Remedies.............................23
Section 10.4. Binding Effect; Assignability...................23
Section 10.5. Governing Law...................................24
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Section 10.6. Construction of the Agreement...................24
Section 10.7. Agreement Not To Petition.......................24
Section 10.8. Excess Funds....................................24
Section 10.9. Confidentiality.................................25
Section 10.10. Execution in Counterparts.......................25
EXHIBITS
EXHIBIT A......-- Form of Servicer Report
EXHIBIT B......-- Form of Opinion of Counsel
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RECEIVABLES SALE AGREEMENT dated as of December 22, 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", WINDMILL FUNDING Corporation, as the "Purchaser" and ABN
AMRO BANK N.V., as the "Administrative Agent" for the Purchaser.
ARTICLE I
DEFINITIONS
"Administrative Agent" means ABN AMRO BANK N.V. and any replacement
thereof under Section 9.1.1.
"Adverse Claim" means any mortgage, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(consensual, statutory or other), charge, security arrangement, or any other
encumbrance or other right or claim in, of or on any Person's assets or
properties in favor of any other Person, of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic
effect as any of the foregoing).
"Agreement" means this Receivables Sale Agreement, as it may be
amended from time to time.
"Aggregate Principal Balance" means, at any time, the aggregate
Principal Balance of all Purchased Receivables at such time.
"Amount Financed" means (i) with respect to any Receivable that is
not a Balloon Payment Receivable, the amount advanced under such Receivable
toward the purchase price of the Financed Vehicle and any related costs,
exclusive of any amount allocable to the premium of force-placed physical
damage insurance covering the Financed Vehicle; and (ii) with respect to a
Balloon Payment Receivable, an amount equal to the present value of the fixed
level payment monthly installments (not including the amount designated as
the Balloon Payment) under the Balloon Payment Receivable, assuming that each
payment is made on the due date in the month in which such payment is due,
discounted at the APR for such Balloon Payment Receivable.
"Annual Percentage Rate" or "APR" of a Receivable means the annual
rate of finance charges stated in the related Contract.
"Balloon Payment" means, for any Receivable, the dollar amount of any
payment which is not a level monthly payment (other than the first or last
payment made on the Receivable which is minimally different from the other
level payments).
"Balloon Payment Receivable" means any Contract listed on the
Schedule of Contracts that provides for amortization of the loan over a
series of fixed level payment monthly installments in accordance with the
actuarial method, the simple interest method or the Rule of 78s, but also
requires a final payment that is greater than the scheduled monthly payments
and is due after payment of such scheduled monthly payments and that may be
made by (i) payment in full in cash of a Balloon Payment, (ii) return of the
Financed Vehicle to the Servicer provided certain conditions are satisfied or
(iii) refinancing the Balloon Payment in accordance with certain conditions.
"Business Day" means any day other than (i) Saturday, Sunday, (ii) a
day on which banks are authorized or required to be closed in New York City
or Chicago, Illinois, or (iii) a day which is a holiday on the Federal
Reserve calendar.
"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
SF = Servicer Fee
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DSP = the number of days in such Settlement
Period
AI = the average daily Investment for such
Settlement Period
DP = 30 days, except for the initial Settlement
Period it shall be the number of days
from the Cut-off Date to December 31,
1997.
APB = the Aggregate Principal Balance on the
first day of such Settlement Period.
"Carrying Costs True-up Amount" has the meaning assigned to that term
in Section 3.1.1.
"Certificate of Title" means any certificate, instrument or other
document issued by a state or other governmental authority in respect of any
motor vehicle for the purpose of evidencing the ownership of, or any Adverse
Claim in or against, such motor vehicle.
"CFC" means Chrysler Financial Corporation, a Michigan corporation.
"Collection" means any amount paid by an Obligor or any other party
with respect to a Purchased Receivable, including Liquidation Proceeds.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices, or other writings pursuant to which such
Receivable arises or which evidence such Receivable.
"Credit and Collection Policy" means the credit and collection
policies and practices of the Servicer and any successor Servicer relating to
Receivables and Contracts, such policies being subject to unilateral revision
or modification at any time by the Servicer or successor Servicer.
"Credit Facilities" means each of the committed loan facilities,
lines of credit, letters of credit and other forms of credit enhancement
available to the Purchaser which are not Liquidity Facilities.
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"Credit Facility Spread" means the per annum spread rate specified as
such in the Fee Letter.
"Cut-Off Date" means December 18, 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 month,
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 month and the last calendar day of each
of the two immediately preceding months, to the extent such preceding months
exist, 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 such preceding
months exist.
"Delinquent Receivable" means any Receivable which has 10% or more of
a scheduled payment past due for more than 60 days.
"Eligible Receivable" means, as of the Cut-Off Date, any Receivable:
(i) the Obligor of which (a) is a resident of the United
States and (b) is not an affiliate of the originating Dealer or any
of the parties hereto,
(ii) the Obligor of which (a) is not the Obligor of any
Receivable which has 10% or more of a scheduled payment past due for
more than 60 days and (b) is not the subject of any bankruptcy,
insolvency or reorganization proceeding or any other proceeding
seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or any substantial
part of its property,
(iii) which is "chattel paper" within the meaning of Section
9-105 of the UCC of all applicable jurisdictions,
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(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 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
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which no part of the Contract related thereto is in violation of any
such law, rule or regulation,
(x) the Financed Vehicle securing which (a) is free and clear
of any Adverse Claim other than the security interest therein then
being assigned by the Seller to the Administrative Agent for the
benefit of the Purchaser, and no enforcement action, whether by
repossession or otherwise, has been taken with respect to such
Financed Vehicle, and (b) is covered by the Required Insurance in
respect of such Financed Vehicle, and such Required Insurance is in
full force and effect, and the proceeds of the Required Insurance has
been assigned to the Seller and such proceeds are fully assignable to
the Administrative Agent, for the benefit of the Purchaser,
(xi) as to which the Administrative Agent has not notified the
Seller that such Receivable or class of Receivables is not acceptable
as an Eligible Receivable, including, without limitation, because
such Receivable arises under a Contract that is not acceptable,
(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 (1) not earlier than 5 months after,
and (2) not later than 60 months after the date any interest therein
is purportedly transferred to the Purchaser hereunder and (b) such
Outstanding Balance is scheduled to be paid in equal consecutive
monthly installments, unless such Receivable is a Balloon Payment
Receivable, 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 Agreement" means the letter agreement dated the date hereof
among the Administrative Agent, the Purchase and the Seller concerning fees
and certain other amounts to be paid in connection with this Agreement.
"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
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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
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 Purchaser
to the Seller for the Purchase, less the amount of all Collections received
and applied as reductions of Investment pursuant to Article V.
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"Late Payment Penalty Rate" means the rate per annum penalty rate
specified as such in the Fee Letter.
"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 and medium
term notes.
"Liquidity Facility Spread" means the per annum spread rate specified
as such in the Fee Letter.
"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 Aggregate Principal
Balance of all Purchased Receivables which are deemed to be uncollectible 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 two immediately preceding months,
to the extent such months exist, 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
the month and the first day of the two immediately preceding months, to the
extent such months 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.
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"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" means the fee specified as such in the Fee Agreement,
which shall include all annual expenses, including but not limited to legal
fees, audit fees, filing and administrative fees, and liquidity and credit
enhancement fees.
"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 December 22, 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
3.1.1.
"Purchased Receivable" means a Receivable arising under a Contract
listed as an Eligible Receivable on the Schedule of Contracts delivered to
the Administrative Agent prior to the Purchase Date being sold to the
Purchaser under this Agreement.
"Purchaser" means Windmill Funding Corporation and its successors and
assigns, including without limitation ABN AMRO Bank N.V., as provider of the
Credit and Liquidity Facilities.
"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.
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"Related Security" means, with respect to any Receivable:
(i) all of the Seller's interest in the Financed Vehicle, the
financing of the purchase of which gave rise to such Receivable,
including, without limitation, all of the Seller's right, title and
interest in and to the proceeds of the Insurance Policies, and all
warranties, indemnities, service obligations and other contract
rights issued or granted by, or otherwise existing under applicable
law against, the manufacturer or Dealer in respect of such Financed
Vehicle,
(ii) all other security interests or liens and property subject
thereto from time to time, if any, purporting to secure payment of
such Receivable, whether pursuant to the Contract related to such
Receivable, or otherwise, together with all financing statements
signed by an Obligor describing any collateral securing such
Receivable, and including, without limitation, all security interests
or liens, and property subject thereto, granted by any Person
(whether or not the primary Obligor on such Receivable) under or in
connection therewith,
(iii) all books, records and other information relating to such
Receivable, including, without limitation, all Contracts,
(iv) all service contracts and other contracts and agreements
relating to such Receivable, and
(v) all proceeds of any of the foregoing.
"Required Insurance" means an Insurance Policy with respect to a
Financed Vehicle (i) that has been issued to the Obligor by an insurance
company acceptable to the Servicer, (ii) that provides comprehensive
collision, fire, theft and other physical damage coverage, (iii) that is in
an amount not less than the market value of the applicable Financed Vehicle,
and (iv) that has the Servicer noted as the loss payee thereon.
"Reserve" means an amount equal to the product of (a) the Reserve
Percentage and (b) the Investment as of the Purchase Date.
"Reserve Percentage" means the percentage rate specified as such in
the Fee Letter.
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"Sale Documents" means this Agreement, the Fee 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 3.1.2.
"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 20th day of each month following a
related Settlement Period (or if such 20th day is not a Business Day, the
next succeeding Business Day).
"Settlement Period" means a calendar month, provided, that, for
purposes of the initial Settlement Period, such period shall commence as of
the Cut-Off Date and end on December 31, 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.
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"Upfront Fee" has the meaning assigned to that term in Section 4.1.10.
ARTICLE II
THE SALE AND PURCHASE
Section 2.1. Sale and Purchase. Upon the terms and subject to the
conditions set forth herein, effective as of the Purchase Date, (i) the
Seller hereby sells, transfers and assigns to the Purchaser all of the
Seller's right, title and interest to and in the Purchased Receivables,
together with the Related Security and Collections from and after the Cut-Off
Date relating to such Purchased Receivables and (ii) the Purchaser hereby
purchases and accepts the transfer and assignment of all of the Seller's
right, title and interest to and in the Purchased Receivables, together with
the Related Security and Collections relating to such Purchased Receivables
(the foregoing sale, transfer and assignment being referred to as the
"Purchase") and (iii) the Purchaser hereby, without any further action
hereunder, does sell, transfer, assign, set over and otherwise convey to the
Seller, effective as of the Purchase Date, without recourse, representation
or warranty of any kind, all right, title and interest of the Purchaser in
and to the Balloon Payments, all monies due and to become due and all amounts
received with respect thereto and all proceeds thereof.
Section 2.2. Purchase Price. The purchase price payable by the
Purchaser for the Purchase shall equal the Aggregate Principal Balance as of
the Cut-Off Date. Such purchase price shall be comprised of a cash component
and a deferred payment component. The cash component of the purchase price
shall be paid by the Purchaser to the Seller on the Purchase Date and shall
equal the Aggregate Principal Balance of the Purchased Receivables as of the
Cut-Off Date minus the Reserve calculated as of such Purchase Date. Upon and
after the reduction of the Investment to zero and the payment in full of all
other amounts due to the Purchaser hereunder, all Collections or other cash
received by the Purchaser on account of Receivables and the interest of the
Purchaser therein and all Receivables held by or on behalf of the Purchaser
will be transmitted in the form received by the Purchaser to the Seller. The
transmission of such amount by the Purchaser shall be deemed to satisfy the
payment of the deferred payment component of the purchase price under this
Section 2.2, and the Purchaser shall have no other obligation to pay such
deferred payment component.
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Section 2.3. CFC's Optional Termination. CFC shall have the right, on
five (5) Business Days' written notice to the Administrative Agent, at any
time following the reduction of the Aggregate Principal Balance hereunder to
a level that is less than ten percent (10%) of the Aggregate Principal
Balance on the Purchase Date, to repurchase from the Purchaser all, and not
part, of the then outstanding Purchased Receivables, together with the
Related Security and Collections relating to such Purchased Receivables. The
purchase price in respect thereof shall be an amount equal to the Investment
outstanding at such time plus all other amounts, including Purchase Discount
and Program Fees, payable (whether due or accrued) hereunder or under any
other Sale Document to the Purchaser or the Administrative Agent at such
time. Such repurchase shall be without representation, warranty or recourse
of any kind by, on the part of or against the Purchaser or the
Administrative Agent.
ARTICLE III
FEES AND EXPENSES
Section 3.1. Determination of Carrying Costs. The following 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:
(i) the weighted average of the discount rates,
inclusive of dealer fees, on all commercial paper notes issued
at a discount and outstanding during the related Settlement
Period (other than commercial paper notes the proceeds of
which are used by the Purchaser to (x) purchase receivables,
or extend financing secured thereby, at a fixed interest rate
or (y) conduct any arbitrage activities of the Purchaser),
converted to an annual yield-equivalent rate on the basis of a
360-day year;
(ii) the weighted average of the annual interest rates
payable on all interest-bearing commercial paper notes,
inclusive of dealer fees, outstanding during the related
Settlement Period (other than the commercial paper notes
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described in clauses (x) and (y) of paragraph (i) above), on
the basis of a 360-day year; and
(iii) the weighted average of the annual interest rates
applicable to any Liquidity Facilities and Credit Facilities
under which the Purchaser has borrowed loans or transferred
interests in Investment during the related Settlement Period
(which loans shall be borrowed or transfers shall be made only
after a determination by the Purchaser that financing its
Investment during such period by issuing commercial paper
notes would not be practicable or cost-efficient, based on
market conditions, effects on the credit rating of the
Purchaser's commercial paper or otherwise, and, if the
Purchaser determines such circumstances no longer exist, so
the it is advisable for the Purchaser to reacquire Investment,
it shall do so as permitted pursuant to the Credit and
Liquidity Facilities);
provided that, to the extent that the Investment is funded by a specific
issuance of commercial paper notes and/or by a specific borrowing or transfer
of interest in Investment under a Liquidity Facility or a Credit Facility,
the Purchase Discount shall equal the rate or weighted average of the rates,
inclusive of dealer fees for commercial paper notes, applicable to such
issuance, borrowing or transfer, provided, further, that, for purposes of the
foregoing, the interest rate applicable to the Liquidity and Credit
Facilities shall be a rate per annum equal each day to the sum of (a) the
overnight reserve adjusted "Interbank Offered Rate" quoted by the
Administrative Agent on such day (or, if such day is not a Business Day, on
the immediately preceding Business Day) for U.S. Dollar deposits with a term
of 1 day (or, if the following day is not a Business Day, for a term
extending to the first succeeding Business Day), as determined by the
Administrative Agent from time to time whenever any Investment is held under
the Credit and Liquidity Facilities, and (b) (i) the Liquidity Facility
Spread, in the case of the Liquidity Facility, or (ii) the Credit Facility
Spread, in the case of the Credit Facility. At any time that any Investment
is held under the Liquidity and Credit Facilities, 96% of such Investment
shall be held under the Liquidity Facility and 4% under the Credit Facility.
(b) Two Business 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
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such month. In addition, the Administrative Agent shall concurrently notify
the Servicer of the actual Purchase Discount for any days during the
immediately preceding Settlement Period with respect to which the Purchase
Discount was estimated, and the difference, if any, between the Carrying
Costs actually paid using the estimated Purchase Discount and the Carrying
Costs which would have been paid had the actual Purchase Discount been
available (such differential being the "Carrying Costs True-up Amount"). If
the amount of Carrying Costs paid for such immediately preceding Settlement
Period based upon an estimated Purchase Discount was less than the amount of
Carrying Costs for such Settlement Period based upon the actual Purchase
Discount, the amount of Collections remitted to the Administrative Agent
pursuant to clause (i) of Section 5.3 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 clause (i) of
Section 5.3 shall be decreased by an amount equal to the Carrying Costs
True-up Amount.
Section 3.1.2. Servicer Fee. A Servicer Fee in respect of each
Settlement Period, equal to the per annum Service Fee Rate (assuming a 30/360
day basis) of the Principal Balance of Purchased Receivables on the first day
of such Settlement Period, shall be remitted by the Purchaser to the
Servicer. If CFC is acting as the Servicer, then the Servicer shall retain an
amount equal to the Servicer Fee (in full satisfaction of the payment of such
fee to the Servicer) out of amounts required to be remitted by the Servicer
in accordance with Section 5.3.
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 a rate of interest equal to the
sum of (a) 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" plus (b) the Late Payment Penalty Rate. Changes
in the rate payable hereunder shall be effective on each date on which a
change in the "Prime Rate" is so published.
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ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASE
Section 4.1. Conditions Precedent to Purchase. The following
conditions must be satisfied before the Purchaser will make the Purchase:
Section 4.1.1. 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 and that all Purchased Receivables are Eligible
Receivables.
Section 4.1.2. Financing Statements. The Administrative Agent will have
received acknowledgment copies of UCC-1 financing statements, and all other
documents reasonably requested by the Administrative Agent, to evidence the
perfection of the Purchaser's interest (through the Administrative Agent) in
the Purchased Receivables, the Related Security and the Collections.
Section 4.1.3. Schedule of Contracts. The Administrative Agent will
have received the Schedule of Contracts.
Section 4.1.4. 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 4.1.5. Servicer Resolutions. The Administrative Agent will
have received a certificate of the Servicer's Secretary or Assistant
Secretary attesting to:
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(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 4.1.6. Legal Opinion of Counsel to the Seller and the Servicer.
The Administrative Agent will have received an opinion from counsel to the
Seller and the Servicer, such counsel being "in-house" counsel unless
otherwise required by any agencies providing a credit rating to the
transaction contemplated hereby, substantially in the form attached hereto as
Exhibit C, together with such other 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 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 4.1.8. 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 4.1.9. 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 to the
Administrative Agent at Closing or at the time agreed upon in the Fee Letter
the upfront fee specified in the Fee
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Agreement, which shall include all upfront expenses, including but not
limited to legal fees, filing and administrative fees, rating agency fees,
and liquidity and credit enhancement fees incurred with respect to the
Purchase.
ARTICLE V
SETTLEMENT PROCEDURES
Section 5.1. Collections. The Servicer shall remit Collections as
provided below with respect to each Settlement Period to the Administrative
Agent on the Settlement Date relating to such Settlement Period.
Section 5.2. Application of Collections. All Collections for the
Settlement Period shall be applied by the Servicer as follows:
(a) With respect to each Purchased Receivable, payments 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.
(b) All Liquidation Proceeds with respect to any Balloon
Payment Receivable shall be applied first to the related Receivable
and only after the payment in full of the Principal Balance thereof
plus accrued but unpaid interest thereon shall any such Liquidation
Proceeds be applied to, or constitute, the related Balloon Payment.
Section 5.3. Application of Collections on Settlement Dates. The
Servicer will, by 3:00 P.M. (New York time) on each Settlement Date, from
Collections received during the preceding Settlement Period, pay to the
Administrative Agent and the Administrative Agent shall distribute such
Collections, together with any Hedging Proceeds received by the
Administrative Agent with respect to such Settlement Period, to the Purchaser
(i) first, an amount equal to the Carrying Costs for the Settlement Period
(as such amount shall be increased or decreased by the Carrying Costs True-up
Amount, if any, for the immediately preceding Settlement Period as determined
pursuant to Section 3.1.1(b)) and (ii) second, all remaining Collections as a
reduction to Investment.
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Section 5.4. Servicer Report. The Servicer will provide the
Purchaser, either in writing or electronically, with a Servicer Report with
respect to each Settlement Period no later than 15 days following the end of
such Settlement Period (or, if such 15th day is not a Business Day, the next
succeeding Business Day).
Section 5.5. Purchase by Servicer Upon Breach. The Seller, the
Servicer or the Administrative Agent, as the case may be, shall inform the
other parties to this Agreement promptly upon the discovery of any breach of
any representation or warranty made pursuant to Section 4.1.1 or Article VII
or of any agreement made in Article VIII. Unless the breach shall have been
cured by the last day of the second Settlement Period following such
discovery (or, at the Servicer's election, the last day of the first
following Settlement Period), the Servicer shall purchase any Receivable
materially and adversely affected by such breach as of such last day. If the
Servicer violates Section 8.3 or otherwise takes any action during any
Settlement Period pursuant to Section 6.1 that impairs the rights of the
Administrative Agent or the Purchaser in any Receivable, the Servicer shall
purchase such Receivable as of the last day of such Settlement Period. In
consideration of the purchase of any Receivable pursuant to either of the two
preceding sentences, the Servicer shall remit the Purchase Amount, and such
repurchased Receivable shall be transferred to the Servicer without recourse,
representation or warranty of any kind. Subject to the provisions of Section
8.5, the sole remedy of the Administrative Agent and the Purchaser with
respect to a breach of representations and warranties pursuant to Section
4.1.1 or Article VII or breach of an agreement contained in Article VIII
shall be to require the Servicer to purchase Receivables pursuant to this
Section.
ARTICLE VI
SERVICING OF RECEIVABLES
Section 6.1. Appointment and Duties of Servicer. The Purchaser and
the Seller each hereby appoint CFC as the Servicer and CFC accepts such
appointment. The Servicer, for the benefit of the Purchaser (to the extent
provided herein), shall manage, service, administer, make collections and
discharge liens on the Purchased Receivables with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to all
comparable automotive receivables that it services for itself or others. If
the Servicer shall commence a legal proceeding to enforce a Purchased
Receivable, the Purchaser shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection, such Purchased Receivables to
the Servicer. If in any enforcement suit or legal proceeding it shall be held
that
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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 five Business Days;
(ii) any representation or warranty made by the Servicer in
Section 7.1, or any information set forth in a Servicer Report or
other certificate delivered to the Administrative Agent, shall prove
to have been incorrect in any material respect when made, which
continues to be incorrect in any material respect for a period of
sixty days after the earlier of the date on which an officer of the
Servicer has actual knowledge thereof and the date on which written
notice thereof has been given to the Servicer, requiring the same to
be remedied, by the Purchaser or the Administrative Agent;
(iii) failure on the part of the Servicer to observe or perform
in any material respect any other term, covenant or agreement in this
Agreement or any other Sale Document which continues unremedied for
sixty days after the earlier of the date on which an officer of the
Servicer has actual knowledge of such failure and the date on which
written notice of such failure has been given to the Servicer,
requiring the same to be remedied, by the Purchaser or the
Administrative Agent; or
(iv) an Insolvency Event with respect to the Seller or the
Servicer,
then, so long as such Servicer Default shall not have been remedied, the
Purchaser shall have the right to remove CFC (or any successor Servicer) as
Servicer by giving written notice thereof to the Servicer. On and after
receipt of such written notice, all authority and power of the Servicer
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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.
(b) If CFC is removed as Servicer, CFC 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 CFC to the quiet use and enjoyment of
such software for the purpose of discharging the obligations of the Servicer
under or in connection with the Sale Documents.
(c) Following the removal of CFC as Servicer, (i) the Purchaser and
the Administrative Agent may (a) notify Obligors of the ownership interest of
the Purchaser hereunder in the Purchased Receivables and the Related
Security, (b) notify each issuer of an Insurance Policy of the ownership
interest of the Purchaser hereunder in the Purchased Receivables and in the
Related Security (including the applicable Financed Vehicle and Insurance
Policy thereon), and (c) direct the Seller to, whereupon the Seller
immediately shall, note the interest of the Purchaser hereunder on each
Certificate of Title relating to each Financed Vehicle and (ii) the Purchaser
and the Administrative Agent shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and remedies
provided under the Uniform Commercial Code of the applicable jurisdiction and
other applicable laws, which rights shall be cumulative.
Section 6.3. Custody of Receivable Files. To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the
Purchaser and the Seller hereby irrevocably appoint the Servicer, and the
Servicer hereby accepts such appointment, to act for the benefit of the
Purchaser and the Seller as custodian of the following documents or
instruments which are hereby or will hereby be constructively delivered to
the Administrative Agent, as pledgee of the Seller, as of the Closing Date
with respect to each Purchased Receivable (the "Receivable Files"):
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(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 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 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 Cut-Off Date and
shall continue in full force and effect until terminated pursuant to this
Section. If CFC shall cease to be Servicer in accordance with the provisions
of this Agreement, the appointment of such Servicer as custodian shall be
terminated by the Purchaser. The Purchaser may terminate the Servicer's
appointment as custodian at any time following the occurrence of a Servicer
Default under Section 6.2(a) upon thirty days written notification to the
Servicer. As soon as practicable after any termination of such appointment,
the Servicer shall deliver the Receivable Files to the Administrative Agent
or to a Person designated by the Administrative Agent at a place or places as
the Administrative Agent may reasonably designate.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Seller and the
Servicer. Each of the Seller and the Servicer makes, with respect to itself,
the following representations and warranties to the Purchaser:
(a) It is a limited liability company or corporation, as
applicable, duly organized or incorporated, validly existing and in
good standing under the laws of the jurisdiction of its organization
or incorporation and is duly qualified in good standing as a foreign
corporation or limited liability company in each jurisdiction where
the failure to be so qualified could materially adversely affect its
ability to perform its obligations hereunder.
(b) The execution, delivery and performance by the Seller and
the Servicer of the Sale Documents, and the Seller's use of the
proceeds of the Purchases, are within the Seller's and the Servicer's
respective corporate or other powers, have been duly authorized by
all necessary corporate or other action, do not contravene (i) the
Seller's or the Servicer's respective articles of organization or
charter, as applicable, or operating agreement or by-laws, as
applicable, or (ii) law or any contractual restriction binding on or
affecting the Seller or the Servicer, and do not result in or require
the creation of any Adverse Claim (other than pursuant hereto) upon
or with respect to any of its properties; and no transaction
contemplated hereby requires compliance with any bulk sales act or
similar law.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by
the Seller or the Servicer of the Sale Documents, or for the
perfection of or the exercise by the Purchaser of its rights and
remedies under the Sale Documents, except for the filing of the
financing statements referred to in Section 4.1.2.
(d) Each Sale Document constitutes the legal, valid and
binding obligation of the Seller and the Servicer, respectively,
enforceable in accordance with its terms.
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(e) There is no pending or threatened action or proceeding
affecting the Seller or the Servicer or any of its subsidiaries
before any court, governmental agency or arbitrator which may
materially adversely affect (i) its financial condition or operations
or (ii) its ability to perform its obligations under the Sale
Documents, or which could affect the legality, validity or
enforceability of any Sale Document or of the interest of the
Purchaser in the Purchased Receivables.
(f) Immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to the
Receivables, the Related Security and Collections, free and clear of
any Adverse Claim, except as created by this Agreement; upon
consummation of the Purchase, the Purchaser will acquire good and
marketable title to the Purchased Receivables and to the Related
Security and the Collections with respect thereto, free and clear of
any Adverse Claim, except as created by this Agreement, and such
transfer has been perfected under the Uniform Commercial Code enacted
in the State of Michigan.
(g) The information 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 or to be furnished at any
time by the Seller to the Administrative Agent in connection with
this Agreement is or will be accurate in all material respects as of
its date, and no such document will contain any untrue statement of a
material fact or will omit to state a material fact which is
necessary to make the facts stated therein not misleading.
(h) The Seller is treating the conveyance of the interest in
the Purchased Receivables and the Collections under this Agreement to
the Purchaser as a sale for purposes of generally accepted accounting
principles.
ARTICLE VIII
COVENANTS
Section 8.1. Affirmative Covenants of the Seller and the Servicer.
Until the Investment is reduced to zero and all other amounts due to the
Purchaser hereunder have been
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paid in full, each of the Seller and the Servicer (with respect to itself)
will, unless the Purchaser has otherwise consented in writing:
(a) Maintain its existence in the jurisdiction of its
organization or incorporation, and qualify and remain qualified in
good standing as a foreign corporation or limited liability company
in each jurisdiction where the failure to be so qualified could
materially adversely affect its ability to perform its obligations
hereunder.
(b) Maintain and implement administrative and operating
procedures, and keep and maintain all records and other information,
reasonably necessary or advisable for the collection of the Purchased
Receivables (including, without limitation, records adequate to
permit the daily identification of Purchased Receivables and all
Collections and adjustments to Purchased Receivables).
(c) At its expense timely and fully perform and comply with
all material provisions and covenants required to be observed by CFC
or the Seller under the Contracts related to the Purchased
Receivables.
(d) Comply in all material respects with the Credit and
Collection Policy in regard to each Purchased Receivable and any
Contract related to such Receivable.
(e) Treat the conveyance of the interest in the Purchased
Receivables and the Collections under this Agreement as a sale for
purposes of generally accepted accounting principles.
Section 8.2 Reporting Requirements of the Servicer. Until the
Investment is reduced to zero and all amounts due to the Purchaser hereunder
have been paid in full, the Servicer will, unless the Purchaser shall
otherwise consent in writing, furnish to the Purchaser:
(a) the Servicer Report as required under Section 5.4;
(b) as soon as possible, and in any event within thirty days
shall describe such event or condition and, if applicable, the steps
being taken with respect thereto by the Person(s) affected thereby,
of: (i) the occurrence of any Servicer Default or event which with
the passage of time or the giving of notice or both would constitute
a Servicer
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Default or (ii) the institution of any litigation, arbitration
proceeding or governmental proceeding which could be reasonably
likely to have a material adverse effect on the performance by the
Servicer of its obligations under this Agreement or the other Sale
Documents or the collectibility of the Purchased Receivables; and
(c) such other information, documents, records or reports
respecting the Purchased Receivables or the condition or operations,
financial or otherwise, of the Servicer or the Seller as the
Purchaser may from time to time reasonably request.
Section 8.3. Negative Covenants of the Seller and the Servicer. Until
the Investment is reduced to zero and all other amounts due to the Purchaser
hereunder have been paid in full, neither the Seller nor the Servicer will,
unless the Purchaser has otherwise consented in writing:
(a) Except as provided herein, sell, assign (by operation of
law or otherwise) or otherwise dispose of, or create or suffer to
exist any Adverse Claim upon or with respect to any Purchased
Receivables, the Related Security or any Collections or assign any
right to receive income in respect thereof; or
(b) Amend or otherwise modify the terms of any Purchased
Receivable, or amend, modify or waive any term or condition of any
Contract related thereto, in each case, in any manner which is
inconsistent with the Credit and Collection Policy.
Section 8.4. Protection of the Purchaser's Interest. (a) Until the
Investment is reduced to zero and all other amounts due to the Purchaser
hereunder have been paid in full, each of the Seller and the Servicer agrees
that from time to time, at its expense, it will promptly execute and deliver
all instruments and documents and take all action that the Administrative
Agent may from time to time reasonably request in order to perfect, evidence
and protect the validity, enforceability, perfection and priority of the
Administrative Agent's and the Purchaser's interests in the Purchased
Receivables, the Related Security and the Collections and to enable the
Administrative Agent and/or the Purchaser to exercise or enforce any of its
rights hereunder. Without limiting the 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 Purchaser's 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,
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however, that, subject to Section 6.5, the Seller is not required to deliver
the Contracts to anyone other than the Servicer;
(b) To the fullest extent permitted by applicable law, the
Administrative Agent shall be permitted to sign and file continuation
statements and amendments thereto and assignments thereof without the
Seller's signature. Carbon, photographic or other reproduction of this
Agreement or any financing statement shall be sufficient as a financing
statement.
Section 8.5. Servicer Indemnities. CFC shall indemnify, defend and
hold harmless the Administrative Agent and the Purchaser, and each of their
respective officers, directors, employees and agents from and against any
loss, liability or expense arising from the use, ownership or operation by
CFC or any of its Affiliates of a Financed Vehicle or CFC's willful
misfeasance or negligence in the performance of its duties under this
Agreement (as Servicer or otherwise).
ARTICLE IX
ADMINISTRATIVE AGENT
Section 9.1. Appointment of Administrative Agent. The Purchaser has
appointed ABN AMRO Bank N.V. as its Administrative Agent. The Administrative
Agent is responsible for administering and enforcing this Agreement
(including holding all Investment) for the benefit of the Purchaser and
fulfilling all other duties expressly assigned to it in this Agreement. The
Purchaser has granted the Administrative Agent the authority to take all
actions necessary to assure the Seller's compliance with the terms of this
Agreement and to take all actions required or permitted to be performed by
the Purchaser under this Agreement.
Section 9.1.1. Replacement of Administrative Agent. The Purchaser may,
at any time in its discretion, remove a Administrative Agent and appoint a
new Administrative Agent, which shall have the duties described in Section
9.1.
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ARTICLE X
MISCELLANEOUS
Section 10.1. 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 10.2. 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 10.3. No Waiver; Remedies. No failure on the part of the
Purchaser to exercise, and no delay in exercising, any right hereunder or
under any Sale Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 10.4. Binding Effect; Assignability. (a) This Agreement shall
be binding upon and inure to the benefit of the Seller, the Servicer, the
Purchaser, the Administrative Agent and their respective successors and
assigns, except that the Seller shall not have the right to assign any
interest herein without the prior written consent of the Purchaser. The
Purchaser may assign any of its rights or obligations hereunder to any
Person; provided that in the case of any such assignment other than pursuant
to a Liquidity Facility or Credit Facility 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.
(b) This Agreement shall create and constitute the continuing
obligation of the parties hereto in accordance with its terms, and shall
remain in full force and effect until such time as the Investment is reduced
to zero and all other amounts due to the Purchaser hereunder have been
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paid in full; provided, however, that the rights and remedies of the
Purchaser under Section 8.5 shall survive any termination of this Agreement.
Section 10.5. Governing Law. This Agreement and the Sale Documents
shall be governed by, and construed in accordance with, the laws of the State
of New York.
Section 10.6. Construction of the Agreement. The parties hereto intend
that the conveyance of the interest in the Purchased Receivables by the
Seller to the Purchaser (through the Administrative Agent) shall be treated
as sales for purposes of generally accepted accounting principles. If,
despite such intention, a determination is made that such transactions shall
not be treated as sales, then this Agreement shall be interpreted to
constitute a security agreement and the transactions effected hereby shall be
deemed to constitute a secured financing by the Purchaser to the Seller under
applicable law. For such purpose, the Seller hereby grants to the
Administrative Agent, for the benefit of the Purchaser, a continuing security
interest in the Purchased Receivables and the Related Security and
Collections related thereto to secure the obligations of the Seller to the
Purchaser hereunder.
Section 10.7. Agreement Not To Petition. Each party hereto agrees, for
the benefit of the holders of the privately or publicly placed indebtedness
for borrowed money of the Purchaser, not, prior to the date which is one (1)
year and one (1) day after the payment in full of all such indebtedness, to
acquiesce, petition or otherwise, directly or indirectly, invoke, or cause
the Purchaser to invoke, any process for the purpose of (a) commencing or
sustaining a case against the Purchaser under any federal or state
bankruptcy, insolvency or similar law (including the Federal Bankruptcy
Code), (b) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official for the Purchaser, or any substantial
part of its property, or (c) ordering the winding up or liquidation of the
affairs of the Purchaser.
Section 10.8. Excess Funds. The Purchaser shall be required to make
payment of the amounts required to be paid pursuant to this Agreement only if
the Purchaser has Excess Funds (as defined below). In the event that the
Purchaser does not have Excess Funds, the excess of the amount due hereunder
over the amount paid shall not constitute a "claim" (as defined in Section
101(5) of the Federal Bankruptcy Code) against the Purchaser until such time
as the Purchaser has Excess Funds. If the Purchaser does not have sufficient
Excess Funds to make any payment due hereunder, then the Purchaser may pay a
lesser amount and make additional payments which in the aggregate equal the
amount of deficiency as soon as possible thereafter. The term "Excess
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Funds" shall mean the excess of (a) the aggregate projected value of the
Purchaser's assets and other property (including cash and cash equivalents),
over (b) the sum of (i) the sum of all scheduled payments of principal,
interest and any other scheduled amounts payable on publicly or privately
placed indebtedness of Windmill for borrowed money, plus (ii) the sum of all
other liabilities, indebtedness and other obligations of the Purchaser for
borrowed money or owed to any credit or liquidity provider, together with all
unpaid interest then accrued thereon, plus (iii) all taxes payable by the
Purchaser to the Internal Revenue Service, plus (iv) all other indebtedness,
liabilities and obligations of the Purchaser then due and payable; provided,
however, that the amount of any liability, indebtedness or obligation of the
Purchaser shall not exceed the projected value of the assets to which
recourse for such liability, indebtedness or obligation is limited; provided
further, however, that the Excess Funds determination will be made once each
Business Day.
Section 10.9. Confidentiality. The Purchaser agrees to maintain the
confidentiality of any information regarding the Seller obtained in
accordance with the terms of this Agreement which is not publicly available,
but the Purchaser may, with advance notice to the Seller, reveal such
information (a) to applicable rating agencies, liquidity providers and credit
providers, (b) as necessary or appropriate in connection with the
administration or enforcement of this Agreement or its funding of the
Purchase under this Agreement, (c) as required by law, government regulation,
court proceeding or subpoena or (d) to bank regulatory agencies and
examiners.
Section 10.10. 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.
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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: βββββ β. βββββ
Title: Assistant Treasurer of Premier
Auto Receivables Company, a Member
of the Seller
Address: βββββ ββββββββ ββββ
ββββββββββ, ββββββββ βββββ
Attention: Assistant Secretary
Facsimile: βββ-βββ-ββββ
CHRYSLER FINANCIAL CORPORATION
as Servicer
By: βββββ β. βββββ
Title: Assistant Treasurer
Address: βββββ ββββββββ ββββ
ββββββββββ, ββββββββ βββββ
Attention: Assistant Secretary
Facsimile: βββ-βββ-ββββ
WINDMILL FUNDING CORPORATION,
as Purchaser
By: βββββββ β. ββββββ
Address: c/o Lord Securities
Corporation
βββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: President
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Telephone: (βββ) βββ-ββββ
Facsimile: (βββ) βββ-ββββ
ABN AMRO BANK N.V.,
as Administrative Agent
By: ββββββ β. βββββ
Title: Group Vice President and
Director
By: βββ β. ββββββββ
Title: Group Vice President
Address: Structured Finance,
Asset Securitization
βββ βββββ βββββββ ββββββ
βββββββ, ββββββββ βββββ-ββββ
Attention: Windmill
Telephone: (βββ) βββ-ββββ
Facsimile: (βββ) βββ-ββββ
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EXHIBIT A
FORM OF SERVICER REPORT
EXHIBIT B
FORM OF OPINION OF COUNSEL