Exhibit 10-BBBBB
Conformed Copy
RECEIVABLES SALE AGREEMENT
Dated as of December 3, 1997
among
PREMIER RECEIVABLES L.L.C.
as Seller,
CHRYSLER FINANCIAL CORPORATION
as Servicer,
OLD LINE FUNDING CORP.
as Purchaser
and
ROYAL BANK OF CANADA
as Agent
TABLE OF CONTENTS
Page
ARTICLE I: DEFINITIONS.................................................. 1
ARTICLE II: THE SALE AND PURCHASE....................................... 13
SECTION 2.1. Sale and Purchase.................................... 13
SECTION 2.2. Purchase Price....................................... 14
SECTION 2.3. Seller's Optional Termination........................ 14
ARTICLE III: FEES AND EXPENSES.......................................... 15
SECTION 3.1. Determination of Carrying Costs..................... 15
(a) Purchase Discount.................................. 15
(b) Servicer Fee....................................... 17
SECTION 3.2. Interest on Unpaid Amounts.......................... 17
ARTICLE IV: CONDITIONS PRECEDENT TO PURCHASE............................ 17
SECTION 4.1. Conditions Precedent to Purchase..................... 17
(a) Absence of Liens................................... 17
(b) Financing Statements............................... 17
(c) Schedule of Contracts.............................. 18
(d) Seller Resolutions................................. 18
(e) Servicer Resolutions............................... 18
(f) Legal Opinion of Counsel to the Seller
and the Servicer................................. 19
(g) Good Standing Certificates......................... 19
(h) Representations and Covenants...................... 19
(i) Other Documents.................................... 19
(j) Upfront Fee........................................ 19
ARTICLE V: SETTLEMENT PROCEDURES........................................ 19
SECTION 5.1. Collections.......................................... 20
SECTION 5.2. Application of Collections........................... 20
SECTION 5.4. Application of Collections on Settlement Dates....... 20
SECTION 5.5. Servicer Report...................................... 21
SECTION 5.6. Repurchase Obligations............................... 21
ARTICLE VI: SERVICING OF RECEIVABLES.................................. 21
SECTION 6.1. Appointment and Duties of Servicer................... 21
SECTION 6.2. Replacement of Servicer.............................. 22
SECTION 6.3. Custody of Receivable Files.......................... 24
SECTION 6.4. Duties of Servicer as Custodian...................... 25
SECTION 6.5. Effective Period and Termination..................... 25
ARTICLE VII: REPRESENTATIONS AND WARRANTIES............................. 25
SECTION 7.1. Representations and Warranties of the
Seller and the Servicer......................... 25
i
ARTICLE VIII: COVENANTS................................................ 27
SECTION 8.1. Affirmative Covenants of the Seller and
the Servicer....................................... 27
SECTION 8.2. Reporting Requirements of the Servicer............... 28
SECTION 8.3. Negative Covenants of the Seller and the Servicer.... 29
SECTION 8.4. Protection of the Purchaser's Interest............... 29
ARTICLE IX: AGENT...................................................... 30
SECTION 9.1. Appointment of Agent................................. 30
ARTICLE X: MISCELLANEOUS............................................... 30
SECTION 10.1. Amendments, Etc..................................... 30
SECTION 10.2. Notices, Etc........................................ 31
SECTION 10.3. No Waiver; Remedies................................. 31
SECTION 10.4. Binding Effect; Assignability....................... 31
SECTION 10.5. Governing Law....................................... 32
SECTION 10.6. Construction of the Agreement....................... 32
SECTION 10.7. No Proceedings...................................... 32
SECTION 10.8. Confidentiality..................................... 33
SECTION 10.9. Execution in Counterparts........................... 33
SECTION 10.10. Indemnification by Seller of Investors, etc........ 33
EXHIBITS
EXHIBIT A - Form of Servicer Report
EXHIBIT B - Form of Opinion of Counsel
ii
RECEIVABLES SALE AGREEMENT, dated as of December 3, 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," OLD LINE FUNDING CORP., a Delaware corporation, as the
"Purchaser," and ROYAL BANK OF CANADA, a Canadian chartered bank acting
through its New York Branch, as the "Agent" for the Investors.
ARTICLE I: DEFINITIONS
"Adverse Claim" means any mortgage, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(consensual, statutory or other), charge, security arrangement, or any other
encumbrance or other right or claim in, of or on any Person's assets or
properties in favor of any other Person, of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic
effect as any of the foregoing).
"Agent" means Royal Bank of Canada, a Canadian chartered bank
acting through its New York Branch, and any successor or assign thereof under
Section 9.1.
"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
.
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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 Program" means a retail installment sale program
in which the final payment is a Balloon Payment and the Balloon Payment may
be made by the Obligor by (i) payment in full in cash of the Balloon Payment,
(ii) return of the Financed Vehicle to the Servicer in lieu of paying the
Balloon Payment in cash provided that certain conditions are satisfied or
(iii) refinancing the Balloon Payment in accordance with certain conditions.
"Balloon Payment Receivable" means any Contract listed on the
Schedule of Contracts that provides for amortization of the loan over a
series of fixed level payment monthly installments in accordance with the
actuarial method, the simple interest method or the Rule of 78s, but also
requires a final payment that is greater than the scheduled monthly payments
and is due after payment of such scheduled monthly payments and that may be
made by (i) payment in full in cash of a Balloon Payment, (ii) return of the
Financed Vehicle to the Servicer provided certain conditions are satisfied or
(iii) refinancing the Balloon Payment in accordance with certain conditions.
"Business Day" means any day other than a day on which banks are
not authorized to be open or required to be closed in New York City.
2
"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
DSP = the number of days in such Settlement
Period
DP = thirty days, except for the initial
Settlement Period when it shall be the number
of days from the Cut-Off Date to December 31,
1997
AI = the average daily Investment for such
Settlement Period
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(a).
"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.
.
3
"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.
"Collection Period" means a calendar month, or, in the case of
the initial Collection Period, the period beginning on the Cut-off Date and
ending on the last day of December, 1997.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices or other writings pursuant to which such
Receivable arises or which evidence such Receivable.
"Credit and Collection Policy" means the credit and collection
policies and practices of the Servicer and any successor Servicer relating to
Receivables and Contracts, such policies being subject to unilateral revision
or modification at any time by the Servicer or successor Servicer.
"Credit Facilities" means each of the committed loan facilities,
lines of credit, letters of credit and other forms of credit enhancement
available to the Purchaser which are not Liquidity Facilities.
"Cut-Off Date" means November 25, 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.
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"Delinquent Receivable" means any Receivable which has 10% or
more of a scheduled payment past due for more than 60 days.
"Designated Account" means an account in the name of and owned by
the Agent, designated by the Agent in a writing delivered to the Seller
pursuant to the provisions of Section 5.1, for the purpose of receiving
Collections of Purchased Receivables.
"Eligible Receivable" means, as of the Cut-Off Date, any
Receivable:
(i) the Obligor of which (a) is a resident of the United States
and (b) is not an affiliate of the originating Dealer or any of the
parties hereto,
(ii) the Obligor of which (a) is not the Obligor of any
Receivable which has 10% or more of a scheduled payment past due for
more than 60 days and (b) is not the subject of any bankruptcy,
insolvency or reorganization proceeding or any other proceeding seeking
the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or any substantial part of its
property,
(iii) which is "chattel paper" within the meaning of Section
9-105 of the UCC of all applicable jurisdictions,
(iv) which is denominated and payable only in United States
dollars in the United States,
(v) which (a) has been originated in the United States by a
Dealer for the retail sale of a Financed Vehicle in the ordinary course
of such Dealer's business and (b) satisfies all applicable requirements
of the Credit and Collection Policy,
(vi) which arises under a Contract (a) which, together with such
Receivable, is (1) in full force and effect and constitutes the legal,
valid and binding obligation of the related Obligor, enforceable
against such Obligor in accordance with its terms, and (2) subject to
no dispute, offset, counterclaim or other defense, and (b) with respect
to which (x) no default,
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breach, violation, or event permitting acceleration under the terms
thereof has occurred and (y) there has not arisen any condition that,
with notice or lapse of time or both, would constitute a default,
breach, violation or event permitting acceleration under the terms
thereof,
(vii) which, together with the related Contract, (a) is secured
by a perfected, valid, subsisting and enforceable first priority
security interest in favor of CFC in the related Financed Vehicle, (b)
contains customary and enforceable provisions such that the rights and
remedies of the holder of such security interest are adequate for
realization against the collateral of the benefits of the security, and
(c) was originated and transferred to the Seller without any conduct
constituting fraud or misrepresentation on the part of the applicable
Dealer, CFC or the Seller,
(viii) which, together with the related Contract, immediately
following the execution of such Contract, was purchased by (and the
originating Dealer has validly assigned all of its right, title and
interest therein to) CFC, which, in turn, has sold such Receivable to
the Seller, and such purchase and assignment of such Receivable, such
Contract and the Related Security to CFC is expressly contemplated in
such Contract,
(ix) which, together with the Contract related thereto, does not
contravene any laws, rules or regulations applicable thereto
(including, without limitation, laws, rules and regulations relating to
usury, truth in lending, fair credit billing, fair credit reporting,
equal credit opportunity, fair debt collection practices and privacy)
and with respect to which no part of the Contract related thereto is in
violation of any such law, rule or regulation,
(x) the Financed Vehicle securing which (a) is free and clear of
any Adverse Claim other than the security interest therein then being
assigned by the Seller to the Agent for the benefit of the Investors,
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
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been assigned to the Seller and such proceeds are fully assignable to
the Agent, for the benefit of the Investors,
(xi) as to which the 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 three months
after, and (2) not later than 72 months after the date any interest
therein is purportedly transferred to the Agent for the benefit of the
Investors hereunder and (b) such outstanding balance is scheduled to be
paid in equal consecutive monthly installments, unless such Receivable
arises under a Balloon Payment Program, 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 agreement, dated as of the date hereof,
between the Agent and the Seller with respect to fees paid in connection with
this Agreement, as the same may be amended from time to time.
"Finance Charges" means, with respect to any Receivable and its
related Contract, any finance, interest or similar charges paid by an Obligor
pursuant to such Contract, including, without limitation, any charge paid 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.
7
"Hedging Proceeds" means any amount payable by CFC to the Agent
under an interest rate cap confirmation, dated as of December 3, 1997, as the
same may be amended.
"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.
"Investor" means the Purchaser and all other owners by assignment
or otherwise of a Receivable (originally purchased by the Purchaser) or any
8
interest therein and, to the extent of the undivided interests so purchased,
shall include any participants.
"Liquidated Receivable" means any Receivable liquidated by the
Servicer through the sale of a Financed Vehicle or otherwise.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the monies collected in respect thereof, from whatever source,
net of the sum of any amounts expended by the Servicer in connection with
such liquidation and any amounts required by law to be remitted to the
Obligor on such Liquidated Receivable.
"Liquidity Facilities" means each of the loan facilities, asset
purchase agreements, lines of credit and other financial accommodations
available to the Purchaser to support the liquidity of the Purchaser's
commercial paper notes and medium term notes.
"Net Loss" for a 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.
9
"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.
"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, liquidity and
credit enhancement fees and dealer commissions.
"Purchase" has the meaning assigned to that term in Section 2.1.
"Purchase Date" means 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(a).
"Purchased Receivable" means an Eligible Receivable arising under
a Contract listed on the Schedule of Contracts delivered to the Agent prior
to the Purchase Date being sold to the Purchaser under this Agreement. Each
Purchased Receivable is a Simple Interest Receivable.
"Purchaser" means Old Line Funding Corp. and any successor
or assign of the Purchaser that is a receivables investment company
which in the ordinary course of its business issues commercial paper or
other securities to fund its acquisition and maintenance of receivables.
.
10
"Receivable" means the indebtedness and other obligations of an
Obligor arising under a Contract, whether such indebtedness or other
obligations constitute accounts, chattel paper, instruments or general
intangibles, and including, without limitation, the obligation to pay any
Finance Charges with respect thereto.
"Receivables Files" means the documents specified in Section 6.3.
"Related Security" means, with respect to any Receivable:
(i) all of the Seller's interest in the Financed Vehicle, the
financing of the purchase of which gave rise to such Receivable,
including, without limitation, all of the Seller's right, title and
interest in and to the proceeds of the Insurance Policies, and all
warranties, indemnities, service obligations and other contract rights
issued or granted by, or otherwise existing under applicable law
against, the manufacturer or Dealer in respect of such Financed
Vehicle,
(ii) all other security interests or liens and property subject
thereto from time to time, if any, purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such
Receivable, or otherwise, together with all financing statements signed
by an Obligor describing any collateral securing such Receivable, and
including, without limitation, all security interests or liens, and
property subject thereto, granted by any Person (whether or not the
primary Obligor on such Receivable) under or in connection therewith,
(iii) all books, records and other information relating to such
Receivable, including, without limitation, all Contracts,
(iv) all service contracts and other contracts and agreements
relating to such Receivable, and
(v) all proceeds of any of the foregoing.
"Required Insurance" means an Insurance Policy with respect to a
Financed Vehicle (i) that has been issued to the Obligor by an insurance
company
.
11
acceptable to the Servicer, (ii) that provides comprehensive collision, fire,
theft and other physical damage coverage, (iii) that is in an amount not less
than the market value of the applicable Financed Vehicle, and (iv) that has
the Servicer noted as the loss payee thereon.
"Reserve" means an amount equal to 5.5% of the Investment as of
the Purchase Date, which will be delivered in the form of Receivables.
"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.
"Scheduled Payment" means the required monthly payment arising
from a Contract for a Precomputed Receivable.
"Schedule of Contracts" means the list of Contracts delivered to
the 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(b).
"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.
.
12
"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 Purchase 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.
"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.
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
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Balloon Payments, all monies due and to become due and all amounts received
with respect thereto and all proceeds thereof.
SECTION 2.2. Purchase Price. The purchase price payable by the
Purchaser for the Purchase shall equal the Aggregate Principal Balance as of
the Cut-Off Date. Such purchase price shall be comprised of a cash component
and a deferred payment component. The cash component of the purchase price
shall be paid by the Purchaser to the Seller on the Purchase Date and shall
equal the Aggregate Principal Balance of the Purchased Receivables as of the
Cut-Off Date minus the Reserve calculated as of such Purchase Date. Upon and
after the reduction of the Investment to zero and the payment in full of all
other amounts due to the Purchaser hereunder, all Collections or other cash
received by the Purchaser on account of Receivables and the interest of the
Purchaser therein and all Receivables held by or on behalf of the Purchaser
will be transmitted in the form received by the Purchaser to the Seller. The
transmission of such amount by the Purchaser shall be deemed to satisfy the
payment of the deferred payment component of the purchase price under this
Section 2.2.
SECTION 2.3. Optional Termination. Chrysler Financial Corporation
shall have the right, on five (5) Business Days' written notice to the 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 purchase from the Purchaser all,
and not part, of the then outstanding Purchased Receivables, together with
the Related Security and Collections relating to such Purchased Receivables.
The purchase price in respect thereof shall be an amount equal to the
Investment outstanding at such time plus all other amounts payable (whether
due or accrued) hereunder or under any other Sale Document to the Investors
or the Agent at such time. Such purchase shall be without representation,
warranty or recourse of any kind by, on the part of or against the Investors
or the Agent.
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ARTICLE III: FEES AND EXPENSES
SECTION 3.1. Determination of Carrying Costs. In calculating the
amount of Carrying Costs to be distributed each Settlement Period out of
Collections of Purchased Receivables:
(a) Purchase Discount.
(i) "Purchase Discount" shall mean an amount equal to the
weighted average of the following:
(1) the weighted average of the discount rates on all
commercial paper notes issued at a discount and outstanding
during the related Settlement Period (other than commercial paper
notes the proceeds of which are used by the Purchaser to (x)
purchase receivables, or extend financing secured thereby, at a
fixed interest rate or (y) conduct any arbitrage activities of
the Purchaser), converted to an annual yield-equivalent rate on
the basis of a 360-day year;
(2) the weighted average of the annual interest rates
payable on all interest-bearing commercial paper notes
outstanding during the related Settlement Period (other than the
commercial paper notes described in clauses (x) and (y) of
paragraph (1) above), on the basis of a 360-day year; and
(3) the weighted average of the annual interest rates
applicable to any Liquidity Facilities under which the Purchaser
has borrowed loans or sold interests 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 or sale 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
15
borrowing or sale, provided, further, that, for purposes of the
foregoing, the interest rates applicable under any Liquidity Facility
shall not exceed the reserve adjusted "LIBO Rate" quoted by the Agent
plus 0.25% per annum (unless not available) and the interest rates
under any Credit Facility shall not exceed 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"
per annum.
(ii) Two Business Days prior to the end of each Settlement
Period, the Agent shall determine the Purchase Discount pursuant to
(i) 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 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 Agent pursuant to Section
5.2 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 Agent pursuant to Section 5.2
shall be decreased by an amount equal to the Carrying Costs True-up
Amount.
(b) Servicer Fee. "Servicer Fee" shall mean a servicer fee in
respect of each Collection Period, equal to 1.0% per annum (assuming a 30/360
day basis) of the Principal Balance of Purchased Receivables on the first day
of such Collection Period; the Servicer Fee shall be remitted by the
Purchaser to the Servicer from Collections received pursuant to Article V
hereof. If CFC is acting
16
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(a).
SECTION 3.2. Interest on Unpaid Amounts. To the extent that the
Seller or Servicer fails to pay when due to the Investors or the 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 interest per annum published on such day (or, if
not then published, on the most recently preceding day) in The Wall Street
Journal as the "Prime Rate." Changes in the rate payable hereunder shall be
effective on each date on which a change in the "Prime Rate" is so published.
ARTICLE IV: CONDITIONS PRECEDENT TO PURCHASE
SECTION 4.1. Conditions Precedent to Purchase. The following
conditions must be satisfied before the Purchaser will make the Purchase:
(a) 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.
(b) Financing Statements. The Agent will have received
acknowledgment copies of UCC-1 financing statements, and all other documents
reasonably requested by the Agent, to evidence the perfection of the interest
of the Agent on behalf of the Investors in the Purchased Receivables, the
Related Security and the Collections.
(c) Schedule of Contracts. The Agent will have received the
Schedule of Contracts.
(d) Seller Resolutions. The Agent will have received a
certificate of the Seller attesting to:
17
(i) 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;
(ii) 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
(iii) the completeness and correctness of the attached
articles of organization and operating agreement of the Seller.
(e) Servicer Resolutions. The Agent will have received a
certificate of the Servicer's Secretary or Assistant Secretary attesting to:
(i) 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;
(ii) the names and signatures of the officers of the Servicer
authorized to execute the Sale Documents to be executed by the
Servicer; and
(iii) the completeness and correctness of the attached
restated articles of incorporation and by-laws of the Servicer.
(f) Legal Opinion of Counsel to the Seller and the Servicer. The
Agent will have received an opinion from counsel to the Seller and the
Servicer, such counsel being "in-house" counsel unless otherwise required by
any agencies providing a credit rating to the transaction contemplated
hereby, substantially in the form attached hereto as Exhibit B, together with
such other matters as the Agent may reasonably request.
(g) Good Standing Certificates. The 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.
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(h) 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.
(i) Other Documents. The Agent will have received all other
documents that the Agent had reasonably requested from the Seller or the
Servicer.
(j) Upfront Fee. The Seller shall have paid a fee to the Agent at
closing 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,
as specified in the Fee Agreement.
ARTICLE V: SETTLEMENT PROCEDURES
SECTION 5.1. Collections. The Servicer shall segregate all
Collections from other funds of the Servicer and the Seller within two
Business Days of receipt thereof and hold such Collections in trust for the
Investors in the Designated Account, provided, however, notwithstanding the
foregoing, for so long as (i) CFC remains the Servicer, (ii) no Servicer
Default shall have occurred and be continuing and (iii) CFC maintains a
long-term unsecured senior debt rating of at least BBB- by Standard & Poor's
Ratings Group and Baa3 by ▇▇▇▇▇'▇ Investors Service, Inc., the Servicer shall
not be required to segregate all Collections and shall remit such Collections
with respect to each Settlement Period to the Agent on the Settlement Date
relating to such Settlement Period. The Seller will not deposit or otherwise
credit, or cause or permit to be so deposited or credited, to the Designated
Account cash or cash proceeds other than Collections of the Purchased
Receivables.
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SECTION 5.2. Application of Collections. All collections for the
Collection Period shall be applied by the Servicer as follows:
(a) With respect to each Receivable (other than a Balloon Payment
Receivable), payments by or on behalf of the Obligor 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.
(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 Agent
and the Agent shall distribute such Collections, together with any Hedging
Proceeds received by the Agent with respect to such Settlement Period, to the
Investors (a) 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(a)(ii)) and (b) second, all remaining
Collections as a reduction to Investment.
SECTION 5.4. Servicer Report. The Servicer will provide the
Agent, 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. Repurchase Obligations. If on any day the Agent
determines that the Seller has extended the maturity of any Contract relating
to a Purchased Receivable or that a Purchased Receivable was not an Eligible
Receivable on the Purchase Date, the Seller agrees to pay to the Agent for
the account of the Investors the amount of the outstanding balance of such
Receivable
20
in full, and the subject Purchased Receivable shall thereupon be deemed
reconveyed to the Seller. Any amounts received by the Agent pursuant to this
Section 5.5 with respect to a Purchased Receivable shall be applied to reduce
the Investment.
ARTICLE VI: SERVICING OF RECEIVABLES
SECTION 6.1. Appointment and Duties of Servicer. The Agent and
the Seller each hereby appoint CFC as the Servicer and CFC accepts such
appointment. The Servicer, for the benefit of the Investors (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 Investors 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 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 Investors. The Agent 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;
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(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 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 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 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
Agent shall have the right to remove CFC (or any successor Servicer) as
Servicer by giving written notice thereof to the Servicer. On and after
receipt of such written notice, all authority and power of the Servicer under
this Agreement shall, without further action, pass to and be vested in such
successor Servicer as may be appointed by the Agent; 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 Agent all records, correspondence and
documents (including computer software) requested by the Agent or such
successor Servicer and permit such Persons to have access to, and to copy,
all software used by the Servicer in the collection, administration or
monitoring of the Purchased Receivables. In the case of software that is then
licensed by, or
22
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 occurrence of a Servicer Default, (i) the Agent
may (a) notify Obligors of the ownership interest of the Agent on behalf of
the Investors hereunder in the Purchased Receivables and the Related
Security, (b) notify each issuer of an Insurance Policy of the ownership
interest of the Agent on behalf of the Investors 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 Agent on
behalf of the Investors hereunder on each Certificate of Title relating to
each Financed Vehicle and (ii) the Investors and the 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.
(d) In the event of a Servicer Default, each of the Seller and
the Servicer (with respect to itself) will, unless the Agent has otherwise
consented in writing, at any reasonable time, permit the Agent or its agents
or representatives, to visit and inspect any of its properties, to examine
its books of account and other records and files relating to Purchased
Receivables (including, without limitation, computer tapes and disks) and to
discuss its affairs, business, finances and accounts with its officers and
employees. The Seller shall pay to the Agent and the Investors any and all
reasonable costs and expenses of the Agent and the Investors, if any
(including reasonable counsel fees and expenses) in connection with the
enforcement of this Agreement and the other documents delivered hereunder.
SECTION 6.3. Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Agent and the Seller hereby irrevocably appoint the Servicer, and the
Servicer hereby accepts such appointment, to act for the benefit of the
Investors and the Seller as
23
custodian of the following documents or instruments which are hereby or will
hereby be constructively delivered to the Agent, as pledgee of the Seller, as
of the 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) 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
Investors and maintain such accurate and complete accounts, records and
computer systems pertaining to each Receivable File as shall enable the
Seller to comply with this Agreement. In performing its duties as custodian
the Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to receivable files
relating to all comparable automotive receivables that the Servicer services
for itself or others.
SECTION 6.5. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cut-Off Date and
shall continue in full force and effect until terminated pursuant to this
Section. If CFC shall cease to be Servicer in accordance with the provisions
of this Agreement, the appointment of such Servicer as custodian shall be
terminated by the Agent. The Agent 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
24
termination of such appointment, the Servicer shall deliver the Receivable
Files to the Agent or to a Person designated by the Agent at a place or
places as the Agent may reasonably designate.
ARTICLE VII: REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Seller and the
Servicer. Each of the Seller and the Servicer makes, with respect to itself,
the following representations and warranties to the Investors and the Agent.
(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 and 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 are within the Seller's and the Servicer's
respective corporate powers, have been duly authorized by all necessary
corporate 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) any law or 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 Agent on behalf of the Investors of its rights and remedies under the
Sale Documents, except for the filing of the financing statements referred to
in Section 4.1(b).
25
(d) Each Sale Document constitutes the legal, valid and binding
obligation of the Seller and the Servicer, respectively, enforceable in
accordance with its terms.
(e) There is no pending or threatened action or proceeding
affecting the Seller or the Servicer or any of its subsidiaries before any
court, governmental agency or arbitrator which may materially adversely
affect (i) its financial condition or operations or (ii) its ability to
perform its obligations under the Sale Documents, or which could affect the
legality, validity or enforceability of any Sale Document or of the interest
of the Agent on behalf of the Investors in the Purchased Receivables.
(f) The Seller is the legal and beneficial owner of 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 Agent on behalf of the Investors will acquire a valid and
perfected first priority ownership interest in the Purchased Receivables and
in the Related Security and the Collections with respect thereto, free and
clear of any Adverse Claim except as created by this Agreement.
(g) The information provided by the Seller to the Servicer for
use in each Servicer Report prepared under Section 5.4 and all information
and Sale Documents furnished or to be furnished at any time by the Seller to
the 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 Agent
on behalf of the Investors as a sale for purposes of generally accepted
accounting principles.
26
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 Agent and the Investors hereunder have been paid in full, each of the
Seller and the Servicer (with respect to itself) will, unless the Agent 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 Agent and the
Investors hereunder have been paid in full, the Servicer will, unless the
Agent shall otherwise consent in writing, furnish to the Agent:
27
(a) the Servicer Report as required under Section 5.4;
(b) as soon as possible, and in any event within thirty days, a
description and, if applicable, the steps being taken with respect thereto by
the Persons affected thereby of: (i) the occurrence of any Servicer Default
or event which with the passage of time or the giving of notice or both would
constitute a Servicer Default or (ii) the institution of any litigation,
arbitration proceeding or governmental proceeding which could be reasonably
likely to have a material adverse effect on the performance by the Servicer
of its obligations under this Agreement or the other Sale Documents or the
collectibility of the Purchased Receivables; and
(c) such other information, documents, records or reports
respecting the Purchased Receivables or the condition or operations,
financial or otherwise, of the Servicer or the Seller as the Agent 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
Agent and the Investors hereunder have been paid in full, neither the Seller
nor the Servicer will, unless the Agent 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.
(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 Agent and the Investors hereunder have been paid in full, each of
the Seller and the Servicer agrees that from time to time, at its expense, it
will
28
promptly execute and deliver all instruments and documents and take all
action that the Agent may from time to time reasonably request in order to
perfect, evidence and protect the validity, enforceability, perfection and
priority of the interest of the Agent on behalf of the Investors in the
Purchased Receivables, the Related Security and the Collections and to enable
the Agent and/or the Investors 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, ▇▇▇▇ its master data
processing records with a legend describing the Agent's and the Investors'
interests therein; and (ii) upon the request of the Agent, execute and file
such financing or continuation statements or amendments thereto or
assignments thereof as may be requested by the Agent, provided, however, that
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 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.
ARTICLE IX: AGENT
SECTION 9.1. Appointment of Agent. The Investors have appointed
Royal Bank of Canada as their initial Agent. The Agent is responsible for
administering and enforcing this Agreement and fulfilling all other duties
expressly assigned to it in this Agreement. The Investors have granted the
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 Investors under this Agreement.
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
Agent,
29
on behalf of the Investors, and in the case of any amendment, by the Seller
and the Servicer 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
Agent 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 Investors, the 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 Agent.
The Investors may assign any of their 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.
(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 Agent and the Investors hereunder
have been paid in full; provided, however, that the rights and remedies of
the Purchaser under Article IX
30
and the provisions of Section 10.7 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, except to the extent that the perfection of the
interests of the Investors in the Receivables or remedies hereunder, in
respect thereof, are governed by the laws of a jurisdiction other than 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 Agent on behalf of the Investors 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 Agent on behalf of the Investors to the
Seller under applicable law. For such purpose, the Seller hereby grants to
the Agent on behalf of the Investors 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 Agent on behalf of the
Investors hereunder.
SECTION 10.7. No Proceedings. Each of the Seller, the Agent, the
Investors and the Servicer each hereby agrees that it will not institute
against the Purchaser any bankruptcy, reorganization, insolvency or similar
proceeding until the date which is one year plus one day since the last day
on which any commercial paper notes or medium term notes issued by the
Purchaser were outstanding.
SECTION 10.8. Confidentiality. The Investors and the Agent agree
to maintain the confidentiality of any information regarding the Seller and
Servicer obtained in accordance with the terms of this Agreement which is not
publicly available, but the Investors and the Agent may, with advance notice
to the Seller and Servicer, 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
31
funding of the Purchase under this Agreement, (c) as required by law,
government regulation, court proceeding or subpoena or (d) to bank regulatory
agencies and examiners.
SECTION 10.9. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.10. Indemnification by Seller of Investors, etc.
Without limiting any other rights which the Investors, the Agent and their
respective officers, directors, employees, agents and Affiliates may have
hereunder or under applicable law, the Seller hereby indemnifies such parties
and holds them harmless from and against any and all damages, losses, claims,
liabilities and related costs and expenses (including attorneys' fees and
disbursements) incurred by any of them arising out of or resulting from this
Agreement or the purchase by the Purchaser of any interest in the Purchased
Receivables or the Related Security and Collections related thereto,
including, without limitation:
(a) any warranty or products liability claim allegedly arising
out of or in connection with merchandise or services which are the subject
of, or were financed with the proceeds of, any Contract under which any of
the Purchased Receivables arise, or any use or misuse by any Person of any
Financed Vehicle (including, without limitation, any use involving the
handling or disposition of any hazardous substance or waste material);
(b) the failure to vest in the Agent for the benefit of the
Investors an ownership or first perfected security interest in the Purchased
Receivables, the Related Security and Collections in respect thereof, free
and clear of any Adverse Claim other than as authorized hereunder; and
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(c) the commingling of Collections of Purchased Receivables at
any time with other funds.
33
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.
SELLER PREMIER RECEIVABLES L.L.C.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer of
Premier Auto Receivables Company,
a Member of the Seller
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Assistant Treasurer
Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SERVICER CHRYSLER FINANCIAL
CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and
Treasurer
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Assistant Secretary
Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
34
PURCHASER OLD LINE FUNDING CORP.
By: ROYAL BANK OF CANADA,
as attorney in fact
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ D. O. Turton
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Manager
Address: c/o Lord Securities Corporation
Two Wall Street, 19th Floor
New York, NY 10005
Attention: Vice President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ D. O. Turton
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Manager
Address: Financial Square
(corner of Front Street and
Old Slip), ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Managing Director,
North American
Securitization Group
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
36