FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
/ X / QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the quarterly period ended June 30, 1995
----------------------------
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the transition period from __________ to __________
Commission file number 1-5966
--------------------
Chrysler Financial Corporation
- -----------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
State of Michigan 38-0961430
- -----------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
27777 Franklin Road, Southfield, Michigan 48034-8286
- -----------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (810) 948-3060
--------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes __x__ No _____
APPLICABLE ONLY TO ISSUERS
INVOLVED IN BANKRUPTCY PROCEEDINGS
DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Sections 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes _____ No _____
APPLICABLE ONLY TO CORPORATE ISSUERS
The registrant had 250,000 shares of common stock outstanding as of June 30,
1995.
The registrant meets the conditions set forth in General Instruction H(1)(a)
and (b) of Form 10-Q and is therefore filing this Form with the reduced
disclosure format.
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
The interim financial data presented herein are unaudited, but in the opinion
of management reflect all adjustments necessary for a fair presentation of
such information. Results for interim periods should not be considered
indicative of results for a full year. Reference should be made to the
financial statements contained in the registrant's Annual Report on Form 10-K
for the year ended December 31, 1994 (the "10-K Report").
2
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF NET EARNINGS
(in millions of dollars)
Three Months Ended Six Months Ended
June 30, June 30,
------------------- -----------------
1995 1994 1995 1994
-------- -------- -------- ------
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Finance Revenue:
Automotive financing:
Retail $200 $131 $365 $269
Wholesale and other 179 125 356 243
Nonautomotive financing 39 70 80 146
---- ---- ---- ----
Total finance revenue 418 326 801 658
Interest expense 247 193 460 378
---- ---- ---- ----
Net margin 171 133 341 280
Other revenues:
Servicing fee income 66 60 135 121
Insurance premiums earned 34 34 71 68
Investment and other income
(Note 4) 110 54 181 112
---- ---- ---- ----
Net margin and other revenues 381 281 728 581
---- ---- ---- ----
Costs and expenses:
Operating expenses 97 116 192 230
Provision for credit losses 100 40 188 91
Insurance losses and adjustment
expenses 31 27 59 53
Depreciation and other expenses 26 29 53 63
---- ---- ---- ----
Total costs and expenses 254 212 492 437
---- ---- ---- ----
Earnings before income taxes 127 69 236 144
Provision for income taxes 41 25 81 53
---- ---- ---- ----
NET EARNINGS $ 86 $ 44 $155 $ 91
==== ==== ==== ====
<CAPTION>
CONSOLIDATED STATEMENT OF Six Months Ended
SHAREHOLDER'S INVESTMENT June 30,
---------------------
(in millions of dollars) 1995 1994
------- ------
(unaudited)
<S> <C> <C>
Balance at beginning of period $ 3,273 $ 3,131
Net earnings 155 91
Common stock dividends (142) --
Net unrealized holding gains (losses) on securities 15 (7)
-------- --------
BALANCE AT END OF PERIOD $ 3,301 $ 3,215
======== ========
<FN>
Prior periods reclassified to conform to current classifications.
See Notes to Consolidated Financial Statements.
</TABLE>
3
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
<TABLE>
<CAPTION>
CONSOLIDATED BALANCE SHEET
(in millions of dollars)
June 30, December 31, June 30,
ASSETS: 1995 1994 1994
-------- ---------- --------
(unaudited) (unaudited)
<S> <C> <C> <C>
Finance receivables-net (Note 1) $ 12,324 $ 12,423 $ 10,862
Retained interests in sold
receivables and other related
amounts - net (Note 1) 2,774 2,251 2,517
-------- -------- --------
Total finance receivables and
retained interests - net 15,098 14,674 13,379
Cash and cash equivalents 231 174 180
Marketable securities 757 583 339
Dealership properties leased - net 395 407 411
Equipment and vehicles leased - net 321 234 176
Repossessed collateral 163 162 254
Amounts due from affiliated
companies -- 66 5
Other assets 302 348 428
-------- -------- --------
TOTAL ASSETS $ 17,267 $ 16,648 $ 15,172
======== ======== ========
LIABILITIES:
Debt (Note 3) $ 11,306 $ 10,671 $ 9,384
Accounts payable, accrued
expenses and other 1,125 1,155 1,047
Amounts due to affiliated companies 39 -- --
Deferred income taxes 1,496 1,549 1,526
-------- -------- --------
Total Liabilities 13,966 13,375 11,957
-------- -------- --------
SHAREHOLDER'S INVESTMENT 3,301 3,273 3,215
-------- -------- --------
TOTAL LIABILITIES AND
SHAREHOLDER'S INVESTMENT $ 17,267 $ 16,648 $ 15,172
======== ======== ========
<FN>
Prior periods reclassified to conform to current classifications.
See Notes to Consolidated Financial Statements.
</TABLE>
4
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF CASH FLOWS
(in millions of dollars)
Six Months Ended
June 30,
-----------------------
1995 1994
---------- ---------
(unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 155 $ 91
Adjustments to reconcile net earnings to
net cash provided by operating activities:
Net gains from receivable sales (38) (41)
Provision for credit losses 188 91
Depreciation and amortization and
write-off of intangibles 38 40
Change in deferred income taxes and income
taxes payable (61) 12
Change in amounts due affiliates 105 29
Change in accounts payable, accrued
expenses and other assets (99) (56)
--------- ---------
Net cash provided by operating activities 288 166
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisitions of finance receivables (38,025) (32,746)
Collections of finance receivables 16,345 12,343
Proceeds from sales of receivables 20,916 19,335
Purchases of equipment and vehicles leased (151) (72)
Dispositions of equipment and vehicles
leased 44 46
Purchases of marketable securities (1,084) (786)
Sales and maturities of marketable securities 932 784
Other 299 (96)
--------- ---------
Net cash used in investing activities (724) (1,192)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Change in short-term notes and affiliated borrowings (920) 323
Proceeds from issuance of term debt 1,834 937
Repayment of term debt (181) (426)
Dividends paid (142) --
Other (98) 107
--------- ---------
Net cash provided by financing activities 493 941
--------- ---------
Change in cash and cash equivalents 57 (85)
Cash and cash equivalents at beginning of period 174 265
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 231 $ 180
========= =========
<FN>
Prior periods reclassified to conform to current classifications.
See Notes to Consolidated Financial Statements.
</TABLE>
5
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - FINANCE RECEIVABLES AND RETAINED INTERESTS
Outstanding balances of "Finance receivables - net" were as follows:
<TABLE>
<CAPTION>
June 30, December 31, June 30,
1995 1994 1994
-------- ----------- --------
(unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C>
Automotive:
Retail $ 6,617 $ 4,850 $ 4,536
Wholesale and other 3,304 3,113 2,294
Retained senior interests in
sold wholesale receivables* 366 2,173 1,532
---------- ---------- ----------
Total automotive 10,287 10,136 8,362
---------- ---------- ----------
Nonautomotive
Leveraged leases 1,564 1,545 1,552
Commercial 765 955 1,145
---------- ---------- ----------
Total nonautomotive 2,329 2,500 2,697
---------- ---------- ----------
Total finance receivables 12,616 12,636 11,059
Less allowance for credit losses (292) (213) (197)
---------- ---------- ----------
Total finance receivables - net $ 12,324 $ 12,423 $ 10,862
========== ========== ==========
<FN>
* Represents receivables held in trust eligible to be securitized or returned
to the company.
</TABLE>
The Company's retained interests in sold receivables and other related amounts
are generally restricted and subject to limited recourse provisions. The
following is a summary of amounts included in "Retained interests in sold
receivables and other related amounts - net":
<TABLE>
<CAPTION>
June 30, December 31, June 30,
1995 1994 1994
-------- ------------ --------
(unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C>
Cash and investments $ 752 $ 669 $ 636
Subordinated interests in
receivables 1,955 1,475 1,704
Excess servicing 129 135 187
Other restricted and securitized
assets 247 269 300
Less allowance for credit losses (309) (297) (310)
------- ------- -------
Total retained interests in sold
receivables and other related
amounts - net $ 2,774 $ 2,251 $ 2,517
======= ======= =======
</TABLE>
6
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
NOTE 1 - FINANCE RECEIVABLES AND RETAINED INTERESTS (CONTINUED)
The Company's total allowance for credit losses including receivables sold
subject to limited recourse is as follows:
<TABLE>
<CAPTION>
June 30, December 31, June 30,
1995 1994 1994
-------- ------------ --------
(unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C>
Allowance for losses deducted from:
Finance receivables $ 292 $ 213 $ 197
Retained interests in sold
receivables and other
related amounts 309 297 310
Equipment and vehicles leased 3 2 1
-------- -------- --------
Total $ 604 $ 512 $ 508
======== ======== ========
</TABLE>
NOTE 2 - SALES OF RECEIVABLES
The Company sells receivables subject to limited recourse provisions.
Outstanding balances of sold finance receivables, excluding retained senior
interests in sold wholesale receivables, were as follows:
<TABLE>
<CAPTION>
June 30, December 31, June 30,
1995 1994 1994
-------- ------------ --------
(unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C>
Automotive:
Retail $ 12,842 $ 12,464 $ 12,286
Wholesale and other 7,766 5,416 5,066
Nonautomotive 160 275 359
-------- -------- --------
Total $ 20,768 $ 18,155 $ 17,711
======== ======== ========
</TABLE>
Gains or losses from the sales of retail receivables are recognized in the
period in which such sales occur. Provisions for expected credit losses are
generally provided during the period in which such receivables are acquired.
Since the allowance for credit losses is separately provided prior to the
receivable sales, gains from receivable sales are not reduced for expected
credit losses. Included in "Investment and other income" are net gains before
expected credit losses totaling $38 million and $41 million for the six months
ended June 30, 1995 and 1994, respectively. The provision for credit losses
related to such sales amounted to $87 million and $63 million for the six
months ended June 30, 1995 and 1994, respectively.
During June, 1995, the Company entered into a commitment to sell $1.5 billion
of retail receivables.
The Company is committed to sell all wholesale receivables related to certain
dealer accounts.
7
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
NOTE 3 - DEBT
<TABLE>
<CAPTION>
Weighted Average
Interest Rates at June 30, December 31, June 30,
Maturity June 30, 1995 1995 1994 1994
- -------- ----------------- -------- ---------- -------
(unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C> <C>
Short-term notes placed
primarily in the open
market:
United States $ 2,824 $ 3,901 $ 2,524
Canada 571 414 579
-------- -------- --------
Total short-term notes
(primarily commercial
paper) 6.4% 3,395 4,315 3,103
-------- -------- --------
Senior term debt:
United States, due
1994 - - 440
1995 5.5% 783 574 574
1996 6.8% 1,602 1,602 1,094
1997 6.9% 1,614 653 571
1998 6.7% 1,349 943 812
1999 9.3% 1,331 1,227 1,203
Thereafter 8.2% 826 994 969
-------- -------- --------
Total United States 7,505 5,993 5,663
Canada, due 1994-1999 8.9% 219 78 39
Less unamortized discount 2 2 2
-------- -------- --------
Total senior term debt 7,722 6,069 5,700
-------- -------- --------
Subordinated term debt:
United States
Senior due 1995 8.3% 27 27 27
Mexico borrowings and other 162 260 554
-------- -------- --------
Total debt $ 11,306 $ 10,671 $ 9,384
======== ======== ========
</TABLE>
CREDIT FACILITIES
During the second quarter of 1995, the Company entered into new revolving
credit facilities which replaced its existing U.S. and Canadian revolving
credit and receivable sale facilities. The new facilities which total $8.0
billion consist of a $2.4 billion facility expiring in May, 1996 and a $5.6
billion facility expiring in May, 2000. These facilities include $0.8 billion
allocated to Chrysler Credit Canada Ltd. As of June 30, 1995, no amounts were
outstanding under these facilities.
The Company has contractual debt maturities of $4.4 billion during the
remainder of 1995 (including $3.4 billion of short-term notes), and $1.6
billion in 1996.
8
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
NOTE 4 - SALE OF NONAUTOMOTIVE ASSETS
During the first quarter of 1995, the Company sold Chrysler Systems Inc. A
gain of $12 million was realized and included in the consolidated statement of
net earnings under the caption "Investment and other income."
NOTE 5 - ACCOUNTING CHANGES
IMPAIRMENT OF A LOAN
Effective January 1, 1995 the Company adopted Statement of Financial
Accounting Standards ("SFAS") No. 114, "Accounting by Creditors for Impairment
of a Loan," and SFAS No. 118, "Accounting by Creditors for Impairment of a
Loan - Income Recognition and Disclosure." These standards require creditors
to evaluate the collectibility of both contractual interest and principal of
receivables when evaluating the need for a loss accrual. A significant portion
of the Company's receivables consist of small-balance homogeneous loans which
are collectively evaluated for impairment. These standards do not apply to
these types of receivables.
The implementation of these standards did not have a material effect on the
Company's results of operations or financial position.
NOTE 6 - TRACINDA CORPORATION TENDER OFFER
On April 12, 1995, Tracinda Corporation ("Tracinda"), which owned
approximately 10 percent of the outstanding common stock of Chrysler
Corporation ("Chrysler"), sent Chrysler a letter proposing to acquire
the remaining 90 percent of Chrysler's common stock at $55 per share.
After a thorough and careful review, Chrysler's Board of Directors
unanimously rejected the leveraged buy-out proposal. Tracinda formally
withdrew its $55 per share offer on May 31, 1995. On June 27, 1995,
Tracinda commenced a cash tender offer for up to 14 million shares
of Chrysler common stock, at a price of $50 per share. Due to the small
percentage of shares sought by Tracinda, Chrysler's Board of Directors has
determined not to take a position with respect to the tender offer.
9
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION
The Company's primary objective is to provide financing support for automotive
dealers and retail customers of Chrysler's products.
The Company's receivables managed and total assets increased from year-end
1994 levels reflecting growth in automotive volume. The Company's portfolio of
receivables managed, which includes receivables owned and receivables serviced
for others, totaled $36.7 billion at June 30, 1995, compared to $32.7 billion
at December 31, 1994, and $30.1 billion at June 30, 1994. The increase in
receivables managed reflects higher levels of automotive financing.
Receivables serviced for others primarily represent sold receivables which the
Company services for a fee. Receivables serviced for others totaled $24.0
billion at June 30, 1995, compared to $20.1 billion at December 31, 1994, and
$19.1 billion at June 30, 1994.
Total assets at June 30, 1995 were $17.3 billion, compared to $16.6 billion at
December 31, 1994, and $15.2 billion a year ago. Total debt outstanding at
June 30, 1995 was $11.3 billion, compared to $10.7 billion at December 31,
1994 and $9.4 billion a year ago. The Company's debt-to-equity ratio was 3.4
to 1 at June 30, 1995 compared to 3.3 to 1 at December 31, 1994, and 2.9 to 1
at June 30, 1994, reflecting increased use of term debt and commercial paper
to fund the Company's asset growth.
The Company's total allowance for credit losses on finance receivables,
including receivables sold subject to limited recourse provisions, totaled
$601 million, $510 million, and $507 million at June 30, 1995, December 31,
1994, and June 30, 1994, respectively. The total allowance for credit losses
as a percentage of related finance receivables outstanding was 1.80 percent,
1.66 percent, and 1.76 percent at June 30, 1995, December 31, 1994, and June
30, 1994, respectively. The increase in credit loss reserve levels from the
comparable period a year ago is a result of higher levels of retail
automotive financing.
RESULTS OF OPERATIONS
Earnings before taxes were $127 million and $236 million for the three and six
months ended June 30, 1995, which compares to $69 million and $144 million for
the comparable periods of 1994. The increase in earnings before taxes for the
six months ended June 30, 1995 resulted from higher levels of automotive
financing and lower bank costs.
The Company's net earnings were $86 million and $155 million for the three and
six months ended June 30, 1995 compared to $44 million and $91 million in the
comparable periods of 1994.
Automotive financing volume totaled $21.4 billion and $41.9 billion for the
three and six months ended June 30, 1995, compared with $17.9 billion and
$35.0 billion in the comparable periods of 1994. Financing support provided in
the United States for new Chrysler vehicle retail deliveries (including
fleet), and wholesale vehicle sales to dealers and the number of vehicles
financed for the three and six months ended June 30, 1995, and 1994
respectively, were as follows:
10
<PAGE>
RESULTS OF OPERATIONS (continued)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ -----------------
1995 1994 1995 1994
-------- -------- -------- ------
<S> <C> <C> <C> <C>
United States Penetration:
Retail 28% 24% 29% 24%
Wholesale 78% 75% 75% 73%
Number of New Chrysler Vehicles
Financed in the United States
(in thousands of units):
Retail 171 149 329 286
Wholesale 401 421 828 844
</TABLE>
Net margin totaled $171 million and $341 million for the three and six months
ended June 30, 1995, compared to $133 million and $280 million for the
comparable periods of 1994. Automotive financing revenue totaled $379 million
and $721 million for the three and six months ended June 30, 1995 compared to
$256 million and $512 million in the comparable periods of 1994.
Finance revenue from the Company's nonautomotive financing operations declined
to $39 million and $80 million for the three and six months ending June 30,
1995. This represents a decline of 44 percent and 45 percent, respectively,
for the comparable periods of 1994. These nonautomotive operations had finance
receivables outstanding of $2.3 billion at June 30, 1995 compared with $2.7
billion at June 30, 1994. The decline in nonautomotive finance revenue and
receivables outstanding is a result of the continued downsizing of the
Company's nonautomotive portfolios.
Service fee income totaled $66 million and $135 million for the three and six
months ended June 30, 1995, an increase of $6 million, and $14 million from
the same periods a year ago. The increase in service fee income is due to
higher levels of sold receivables which the Company continues to service.
Investment and other income totaled $110 million and $181 million for the
three and six months ended June 30, 1995 compared to $54 million and $112
million in the comparable periods ended June 30, 1994. The change in
investment and other income was primarily due to an increase in income
earned on cash equivalents and marketable securities and a $12 million
gain from the sale of a consolidated subsidiary during the first quarter
of 1995.
A comparison of borrowing costs is shown in the following table:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ -----------------
1995 1994 1995 1994
-------- -------- -------- ------
(dollars in millions)
<S> <C> <C> <C> <C>
Interest expense $ 247 $ 193 $ 460 $ 378
Average borrowings $ 11,632 $ 9,268 $ 11,385 $ 9,057
Average effective cost
of borrowings 8.3% 8.4% 8.1% 8.4%
</TABLE>
11
<PAGE>
RESULTS OF OPERATIONS (continued)
Operating expenses totaled $97 million and $192 million for the three and six
months ended June 30, 1995, compared to $116 million and $230 million for the
comparable periods of 1994. The decline in operating expenses reflects the
downsizing of nonautomotive operations.
Net credit loss experience, including net losses on receivables sold subject
to limited recourse provisions, for the first six months of 1995 and 1994 was
as follows:
<TABLE>
<CAPTION>
Net Credit Losses
------------------
1995 1994
-------- --------
(in millions of dollars)
<S> <C> <C>
Automotive financing $ 82 $ 45
Nonautomotive financing 19 19
-------- --------
Total $ 101 $ 64
======== ========
<CAPTION>
Net Credit Losses to
Average Receivables
Outstanding
--------------------
1995 1994
------- --------
<S> <C> <C>
Automotive financing 0.51% 0.33%
Nonautomotive financing 1.13% 0.96%
Total 0.57% 0.41%
</TABLE>
The recent increase in net credit losses to average receivables outstanding is
primarily related to retail automotive financing.
The Company paid $142 million in dividends to Chrysler for the six months
ended June 30, 1995. There were no dividends paid to Chrysler for the six
months ended June 30, 1994.
The Company's Mexican subsidiary, Chrysler Comercial S.A. de C.V. ("Chrysler
Comercial") had total assets of $278 million and $564 million at June 30, 1995
and 1994, respectively. The economic uncertainty in Mexico following the
devaluation of the peso in 1994 has had a negative impact on Chrysler
Comercial's retail and wholesale lending activities. The Company has
strengthened its reserves for Mexican credit losses which it believes are
adequate to cover expected losses at this time.
LIQUIDITY AND CAPITAL RESOURCES
During the second quarter of 1995, the Company entered into new revolving
credit facilities which replaced its existing U.S. and Canadian revolving
credit and receivable sale facilities. The new facilities which total $8.0
billion consist of a $2.4 billion facility expiring in May, 1996 and a $5.6
billion facility expiring in May, 2000. These facilities include $0.8 billion
allocated to Chrysler Credit Canada Ltd. As of June 30, 1995, no amounts were
outstanding under these facilities.
Receivable sales continued to be a significant source of funding in the
first six months of 1995 as the Company realized $3.2 billion of net
proceeds from the sale of automotive retail receivables, compared to $3.5
billion of net proceeds in the same period of 1994. In addition,
securitization of wholesale receivables provided funding which
aggregated $7.3 billion and $4.5 billion at June 30, 1995 and 1994,
respectively.
12
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES (continued)
At June 30, 1995, the Company had contractual debt maturities of $4.4 billion
during the remainder of 1995 (including $3.4 billion of short-term notes),
$1.6 billion in 1996, and $1.7 billion in 1997.
The Company believes that cash provided by operations, receivable sales,
access to term debt markets, and issuance of commercial paper will provide
sufficient liquidity to meet its funding requirements.
NEW ACCOUNTING STANDARD
In March 1995, the Financial Accounting Standards Board ("FASB") issued
Statement of Accounting Standards No. 121, "Accounting for the Impairment
of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of,"
effective for fiscal years beginning after December 15, 1995. This
statement establishes accounting standards for the impairment of
long-lived assets, certain identifiable intangibles, and goodwill
related to those assets to be held and used and long-lived assets and
certain identifiable tangibles to be disposed of. The statement requires
that long-lived assets and certain identifiable intangibles to be held
and used by an entity be reviewed for impairment whenever events or changes
in circumstances indicate that the carrying amount of an asset may not
be recoverable. In addition, the statement requires that certain long-lived
assets and intangibles to be disposed of be reported at the lower of carrying
amount or fair value less cost to sell. The Company has not determined the
impact that the adoption of this accounting standard will have on its
consolidated operating results or financial position. The Company will adopt
this accounting standard on or before January 1, 1996, as required.
In May 1995, the FASB issued SFAS No. 122, "Accounting for Mortgage
Servicing Rights," which amends FASB Statement No. 65, "Accounting for
Certain Mortgage Banking Activities" by requiring that a mortgage banking
enterprise assess its capitalized mortgage servicing rights for impairment
based on the fair value of those rights. The Company does not expect the
adoption of this accounting standard to have a material effect on its
consolidated operating results or financial position. The Company will
adopt this accounting standard on or before January 1, 1996, as required.
REVIEW BY INDEPENDENT PUBLIC ACCOUNTANTS
Deloitte & Touche LLP, the Company's independent public accountants, performed
a review of the financial statements for the three and six month periods ended
June 30, 1995 and 1994 in accordance with the standards for such reviews
established by the American Institute of Certified Public Accountants. The
review did not constitute an audit, and accordingly, Deloitte & Touche LLP did
not express an opinion on the aforementioned data. Refer to the Independent
Accountants' Report included in Exhibit 15-A.
13
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES
(Omitted in accordance with general instruction H)
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
(Omitted in accordance with general instruction H)
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(Omitted in accordance with general instruction H)
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are filed as a part of this report.
EXHIBIT NO.
3-A Copy of the Restated Articles of Incorporation of Chrysler
Financial Corporation as adopted and filed with the Corporation
Division of the Michigan Department of Treasury on October 1, 1971.
Filed as Exhibit 3-A to Registration No. 2-43097 of Chrysler
Financial Corporation, and incorporated herein by reference.
3-B Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on December 26, 1975, April 23,
1985 and June 21, 1985, respectively. Filed as Exhibit 3-B to the
Annual Report of Chrysler Financial Corporation on Form 10-K for
the year ended December 31, 1985, and incorporated herein by
reference.
3-C Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on August 12, 1987 and August 14,
1987, respectively. Filed as Exhibit 3 to the Quarterly Report of
Chrysler Financial Corporation on Form 10-Q for the quarter ended
September 30, 1987, and incorporated herein by reference.
3-D Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on December 11, 1987 and January
25, 1988, respectively. Filed as Exhibit 3-D to the Annual Report
of Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1987, and incorporated herein by reference.
3-E Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on June 13, 1989 and June 23,
1989, respectively. Filed as Exhibit 3-E to the Quarterly Report of
Chrysler Financial Corporation on Form 10-Q for the quarter ended
June 30, 1989, and incorporated herein by reference.
14
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
3-F Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on September 13, 1989, January
31, 1990 and March 8, 1990, respectively. Filed as Exhibit 3-E to
the Annual Report of Chrysler Financial Corporation on Form 10-K
for the year ended December 31, 1989, and incorporated herein by
reference.
3-G Copy of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on March 29, 1990 and May 10,
1990. Filed as Exhibit 3-G to the Quarterly Report of Chrysler
Financial Corporation on Form 10-Q for the quarter ended March 31,
1990, and incorporated herein by reference.
3-H Copy of the By-Laws of Chrysler Financial Corporation as amended to
March 2, 1987. Filed as Exhibit 3-C to the Annual Report of
Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1986, and incorporated herein by reference.
3-I Copy of the By-Laws of Chrysler Financial Corporation as amended to
August 1, 1990. Filed as Exhibit 3-I to the Quarterly Report of
Chrysler Financial Corporation on Form 10-Q for the quarter ended
September 30, 1990, and incorporated herein by reference.
3-J Copy of By-Laws of Chrysler Financial Corporation as amended to
January 1, 1992, and presently in effect. Filed as Exhibit 3-H to
the Annual Report of Chrysler Financial Corporation on Form 10-K
for the year ended December 31, 1991, and incorporated herein by
reference.
4-A Copy of Indenture, dated as of June 15, 1984, between Chrysler
Financial Corporation and Manufacturers Hanover Trust Company, as
Trustee, United States Trust Company of New York, as successor
Trustee, related to Senior Debt Securities of Chrysler Financial
Corporation. Filed as Exhibit (1) to the Current Report of Chrysler
Financial Corporation on Form 8-K, dated June 26, 1984, and
incorporated herein by reference.
4-B Copy of Indenture, dated as of September 15, 1986, between Chrysler
Financial Corporation and Manufacturers Hanover Trust Company,
Trustee, United States Trust Company of New York, as successor
Trustee, related to Chrysler Financial Corporation Senior Debt
Securities. Filed as Exhibit 4-E to the Quarterly Report of
Chrysler Financial Corporation on Form 10-Q for the quarter ended
September 30, 1986, and incorporated herein by reference.
4-C Copy of Amended and Restated Indenture, dated as of September 15,
1986, between Chrysler Financial Corporation and Manufacturers
Hanover Trust Company, Trustee, United States Trust Company of New
York, as successor Trustee, related to Chrysler Financial
Corporation Senior Debt Securities. Filed as Exhibit 4-H to the
Quarterly Report of Chrysler Financial Corporation on Form 10-Q for
the quarter ended June 30, 1987, and incorporated herein by
reference.
15
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
4-D Copy of Indenture, dated as of February 15, 1988, between Chrysler
Financial Corporation and Manufacturers Hanover Trust Company,
Trustee, United States Trust Company of New York, as successor
Trustee, related to Chrysler Financial Corporation Senior Debt
Securities. Filed as Exhibit 4-A to Registration No. 33-23479 of
Chrysler Financial Corporation, and incorporated herein by
reference.
4-E Copy of First Supplemental Indenture, dated as of March 1, 1988,
between Chrysler Financial Corporation and Manufacturers Hanover
Trust Company, Trustee, United States Trust Company of New York, as
successor Trustee, to the Indenture, dated as of February 15, 1988,
between such parties, related to Chrysler Financial Corporation
Senior Debt Securities. Filed as Exhibit 4-L to the Annual Report
of Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1987, and incorporated herein by reference.
4-F Copy of Second Supplemental Indenture, dated as of September 7,
1990, between Chrysler Financial Corporation and Manufacturers
Hanover Trust Company, Trustee, United States Trust Company of New
York, as successor Trustee, to the Indenture, dated as of February
15, 1988, between such parties, related to Chrysler Financial
Corporation Senior Debt Securities. Filed as Exhibit 4-M to the
Quarterly Report of Chrysler Financial Corporation on Form 10-Q for
the quarter ended September 30, 1990, and incorporated herein by
reference.
4-G Copy of Third Supplemental Indenture, dated as of May 4, 1992,
between Chrysler Financial Corporation and United States Trust
Company of New York, as successor Trustee, to the Indenture, dated
as of February 15, 1988 between such parties, relating to Chrysler
Financial Corporation Senior Debt Securities. Filed as Exhibit 4-N
to the Quarterly Report of Chrysler Financial Corporation on Form
10-Q for the quarter ended June 30, 1992, and incorporated herein
by reference.
4-H Copy of Indenture, dated as of February 15, 1988, between Chrysler
Financial Corporation and IBJ Schroder Bank & Trust Company,
Trustee, related to Chrysler Financial Corporation Subordinated
Debt Securities. Filed as Exhibit 4-B to Registration No. 33-23479
of Chrysler Financial Corporation, and incorporated herein by
reference.
4-I Copy of First Supplemental Indenture, dated as of September 1,
1989, between Chrysler Financial Corporation and IBJ Schroder Bank
& Trust Company, Trustee, to the Indenture, dated as of February
15, 1988, between such parties, related to Chrysler Financial
Corporation Subordinated Debt Securities. Filed on September 13,
1989 as Exhibit 4-N to the Current Report of Chrysler Financial
Corporation on Form 8-K dated September 1, 1989, and incorporated
herein by reference.
4-J Copy of Indenture, dated as of February 15, 1988, between Chrysler
Financial Corporation and Irving Trust Company, Trustee, related to
Chrysler Financial Corporation Junior Subordinated Debt Securities.
Filed as Exhibit 4-C to Registration No. 33-23479 of Chrysler
Financial Corporation, and incorporated herein by reference.
16
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
4-K Copy of First Supplemental Indenture, dated as of September 1,
1989, between Chrysler Financial Corporation and Irving Trust
Company, Trustee, to the Indenture, dated as of February 15, 1988,
between such parties, related to Chrysler Financial Corporation
Junior Subordinated Debt Securities. Filed on September 13, 1989 as
Exhibit 4-O to the Current Report of Chrysler Financial Corporation
on Form 8-K dated September 1, 1989, and incorporated herein by
reference.
10-A Copy of Income Maintenance Agreement, made December 20, 1968, among
Chrysler Financial Corporation, Chrysler Corporation and Chrysler
Motors Corporation. Filed as Exhibit 13-D to Registration Statement
No. 2-32037 of Chrysler Financial Corporation, and incorporated
herein by reference.
10-B Copy of Agreement, made April 19, 1971, among Chrysler Financial
Corporation, Chrysler Corporation and Chrysler Motors Corporation,
amending the Income Maintenance Agreement among such parties. Filed
as Exhibit 13-B to Registration Statement No. 2-40110 of Chrysler
Financial Corporation and Chrysler Corporation, and incorporated
herein by reference.
10-C Copy of Agreement, made May 29, 1973, among Chrysler Financial
Corporation, Chrysler Corporation and Chrysler Motors Corporation,
further amending the Income Maintenance Agreement among such
parties. Filed as Exhibit 5-C to Registration Statement No. 2-49615
of Chrysler Financial Corporation, and incorporated herein by
reference.
10-D Copy of Agreement, made as of July 1, 1975, among Chrysler
Financial Corporation, Chrysler Corporation and Chrysler Motors
Corporation, further amending the Income Maintenance Agreement
among such parties. Filed as Exhibit D to the Annual Report of
Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1975, and incorporated herein by reference.
10-E Copy of Agreement, made June 4, 1976, between Chrysler Financial
Corporation and Chrysler Corporation further amending the Income
Maintenance Agreement between such parties. Filed as Exhibit 5-H to
Registration Statement No. 2-56398 of Chrysler Financial
Corporation, and incorporated herein by reference.
10-F Copy of Agreement, made March 27, 1986, between Chrysler Financial
Corporation, Chrysler Holding Corporation (now known as Chrysler
Corporation) and Chrysler Corporation (now known as Chrysler Motors
Corporation) further amending the Income Maintenance Agreement
among such parties. Filed as Exhibit 10-F to the Annual Report of
Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1986, and incorporated herein by reference.
10-G Copy of Short Term Revolving Credit Agreement, dated as of May 1,
1995, among Chrysler Financial Corporation, Chrysler Credit Canada
Ltd., the several commercial banks party thereto, as Managing
Agents, Royal Bank of Canada, as Canadian Administrative Agent, and
Chemical Bank, as Administrative Agent.
17
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-H Copy of Long Term Revolving Credit Agreement, dated as of May 1,
1995, among Chrysler Financial Corporation, Chrysler Credit Canada
Ltd., the several commercial banks party thereto, as Managing
Agents, Royal Bank of Canada, as Canadian Administrative Agent, and
Chemical Bank, as Administrative Agent.
10-I Copy of Fifth Amended and Restated Commitment Transfer Agreement,
dated as of May 1, 1995, among Chrysler Financial Corporation, the
several financial institutions parties thereto and Chemical Bank,
as agent.
10-J Copy of Amended and Restated Trust Agreement, dated as of April 1,
1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1993-2. Filed as Exhibit 4.1 to the
Quarterly Report of Premier Auto Trust 1993-2 on Form 10-Q for the
quarter ended June 30, 1993, and incorporated herein by reference.
10-K Copy of Indenture, dated as of April 1, 1993, between Premier Auto
Trust 1993-2 and Bankers Trust Company, as Indenture Trustee, with
respect to Premier Auto Trust 1993-2. Filed as Exhibit 4.2 of the
Quarterly Report of Premier Auto Trust 1993-2 on Form 10-Q for the
quarter ended June 30, 1993, and incorporated herein by reference.
10-L Copy of Amended and Restated Trust Agreement, dated as of June 1,
1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1993-3. Filed as Exhibit 4.1 to the
Quarterly Report of Premier Auto Trust 1993-3 on Form 10-Q for the
quarter ended June 30, 1993, and incorporated herein by reference.
10-M Copy of Indenture, dated as of June 1, 1993, between Premier Auto
Trust 1993-3 and Bankers Trust Company, as Indenture Trustee. Filed
as Exhibit 4.2 to the Quarterly Report of Premier Auto Trust 1993-3
on Form 10-Q for the quarter ended June 30, 1993, and incorporated
herein by reference.
10-N Copy of Series 1993-1 Supplement, dated as of February 1, 1993,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1993-1. Filed as Exhibit 3 to the Trust's Registration
Statement on Form 8-A dated March 15, 1993, and incorporated herein
by reference.
10-O Copy of Receivables Purchase Agreement, made as of April 7, 1993,
among Chrysler Credit Canada Ltd., Chrysler Financial Corporation
and Association Assets Acquisition Inc., with respect to CARS
1993-1. Filed as Exhibit 10-OOOO to the Quarterly Report on Form
10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-P Copy of Receivables Purchase Agreement, made as of June 29, 1993,
among Chrysler Credit Canada Ltd., Chrysler Financial Corporation
and Associated Assets Acquisition Inc., with respect to CARS
1993-2. Filed as Exhibit 10-PPPP to the Quarterly Report on Form
10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
18
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-Q Copy of Pooling and Servicing Agreement, dated as of August 1,
1993, among Auto Receivables Corporation, Chrysler Credit Canada
Ltd., Montreal Trust Company of Canada and Chrysler Financial
Corporation, with respect to CARCO 1993-1. Filed as Exhibit 10-QQQQ
to the Quarterly Report on Form 10-Q of Chrysler Financial
Corporation for the quarter ended September 30, 1993, and
incorporated herein by reference.
10-R Copy of Standard Terms and Conditions of Agreement, dated as of
August 1, 1993, among Auto Receivables Corporation, Chrysler Credit
Canada Ltd. and Chrysler Financial Corporation, with respect to
CARCO 1993-1. Filed as Exhibit 10-RRRR to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-S Copy of Purchase Agreement, dated as of August 1, 1993, between
Chrysler Credit Canada Ltd., and Auto Receivables Corporation, with
respect to CARCO 1993-1. Filed as Exhibit 10-SSSS to the Quarterly
Report on Form 10-Q of Chrysler Financial Corporation for the
quarter ended September 30, 1993, and incorporated herein by
reference.
10-T Copy of Asset Purchase Agreement, dated as of July 31, 1993,
between Chrysler Rail Transportation Corporation and General
Electric Railcar Leasing Services Corporation. Filed as Exhibit
10-WWWW to the Quarterly Report on Form 10-Q of Chrysler Financial
Corporation for the quarter ended September 30, 1993, and
incorporated herein by reference.
10-U Copy of Amended and Restated Loan Agreement, dated as of June 1,
1993, between Chrysler Realty Corporation and Chrysler Credit
Corporation. Filed as Exhibit 10-XXXX to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-V Copy of Origination and Servicing Agreement, dated as of June 4,
1993, among Chrysler Leaserve, Inc., General Electric Capital Auto
Lease, Inc., Chrysler Credit Corporation and Chrysler Financial
Corporation. Filed as Exhibit 10-ZZZZ to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-W Copy of Amended and Restated Trust Agreement, dated as of September
1, 1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Trustee, with respect to
Premier Auto Trust 1993-5. Filed as Exhibit 4.1 to the Quarterly
Report of Premier Auto Trust 1993-5 on Form 10-Q for the quarter
ended September 30, 1993, and incorporated herein by reference.
10-X Copy of Indenture, dated as of September 1, 1993, between Premier
Auto Trust 1993-5 and Bankers Trust Company, as Indenture Trustee,
with respect to Premier Auto Trust 1993-5. Filed as Exhibit 4.2 to
the Quarterly Report of Premier Auto Trust 1993-5 on Form 10-Q for
the quarter ended September 30, 1993, and incorporated herein by
reference.
19
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-Y Copy of Asset Purchase Agreement, dated as of October 29, 1993,
between Marine Asset Management Corporation and Trico Marine
Assets, Inc.. Filed as Exhibit 10-CCCCC to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-Z Copy of Asset Purchase Agreement, dated as of December 3, 1993,
between Chrysler Rail Transportation Corporation and Allied Railcar
Company. Filed as Exhibit 1O-OOOO to the Annual Report on Form 10-K
of Chrysler Financial Corporation for the year ended December 31,
1993, and incorporated herein by reference.
10-AA Copy of Secured Loan Purchase Agreement, dated as of December 15,
1993, among Chrysler Credit Canada Ltd., Leaf Trust and Chrysler
Financial Corporation. Filed as Exhibit 10-PPPP to the Annual
Report on Form 10-K of Chrysler Financial Corporation for the year
ended December 31, 1993, and incorporated herein by reference.
10-BB Copy of Series 1993-2 Supplement, dated as of November 1, 1993,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1993-2. Filed as Exhibit 3 to the Registration
Statement on Form 8-A of CARCO Auto Loan Master Trust dated
December 6, 1993, and incorporated herein by reference.
10-CC Copy of Amended and Restated Trust Agreement, dated as of November
1, 1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1993-6. Filed as Exhibit 4-A to the
Annual Report on Form 10-K of Premier Auto Trust 1993-6 for the
year ended December 31, 1993, and incorporated herein by
reference.
10-DD Copy of Indenture, dated as of November 1, 1993, between Premier
Auto Trust 1993-6 and The Fuji Bank and Trust Company, as Indenture
Trustee, with respect to Premier Auto Trust 1993-6. Filed as
Exhibit 4-B to the Annual Report on Form 10-K of Premier Auto Trust
1993-6 for the year ended December 31, 1993, and incorporated
herein by reference.
10-EE Copy of Secured Loan Purchase Agreement, dated as of March 29,
1994, among Chrysler Credit Canada Ltd., Leaf Trust and Chrysler
Financial Corporation. Filed as Exhibit 10-ZZZ to the Quarterly
Report of Chrysler Financial Corporation on Form 10-Q for the
quarter ended March 31, 1994, and incorporated herein by reference.
10-FF Copy of Amended and Restated Trust Agreement, dated as of February
1, 1994, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1994-1. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1994-1 for the
quarter ended March 31, 1994, and incorporated herein by
reference.
20
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-GG Copy of Indenture, dated as of February 1, 1994, between Premier
Auto Trust 1994-1 and The Fuji Bank and Trust Company, as Indenture
Trustee, with respect to Premier Auto Trust 1994-1. Filed as
Exhibit 4.2 to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1994-1 for the quarter ended March 31, 1994, and incorporated
herein by reference.
10-HH Copy of Secured Loan Purchase Agreement, dated as of July 6, 1994,
among Chrysler Credit Canada Ltd., Leaf Trust and Chrysler
Financial Corporation. Filed as Exhibit 10-BBBB to the Quarterly
Report on Form 10-Q of Chrysler Financial Corporation for the
quarter ended June 30, 1994, and incorporated herein by reference.
10-II Copy of Amended and Restated Trust Agreement, dated as of May 1,
1994, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1994-2. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1994-2 for the
quarter ended June 30, 1994, and incorporated herein by reference.
10-JJ Copy of Indenture, dated as of May 1, 1994, between Premier Auto
Trust 1994-2 and The Fuji Bank and Trust Company, as Indenture
Trustee, with respect to Premier Auto Trust 1994-2. Filed as
Exhibit 4.2 to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1994-2 for the quarter ended June 30, 1994, and incorporated
herein by reference.
10-KK Copy of Amended and Restated Trust Agreement, dated as of June 1,
1994, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank, Delaware, with respect to Premier
Auto Trust 1994-3. Filed as Exhibit 4.1 to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1994-3 for the quarter ended June
30, 1994, and incorporated herein by reference.
10-LL Copy of Indenture, dated as of June 1, 1994, between Premier Auto
Trust 1994-3 and The Fuji Bank and Trust Company, as Indenture
Trustee, with respect to Premier Auto Trust 1994-3. Filed as
Exhibit 4.2 to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1994-3 for the quarter ended June 30, 1994, and incorporated
herein by reference.
10-MM Copy of Master Receivables Purchase Agreement among Chrysler Credit
Canada Ltd., CORE Trust and Chrysler Financial Corporation, dated
as of November 29, 1994. Filed as Exhibit 10-FFF to the Annual
Report on Form 10-K of Chrysler Financial Corporation for the year
ended December 31, 1994, and incorporated herein by reference.
10-NN Copy of Terms Schedule among Chrysler Credit Canada Ltd., CORE
Trust and Chrysler Financial Corporation, dated as of December 2,
1994, with respect to the sale of retail automotive receivables to
CORE Trust. Filed as Exhibit 10-GGG to the Annual Report on Form
10-K of Chrysler Financial Corporation for the year ended December
31, 1994, and incorporated herein by reference.
21
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-OO Copy of Terms Schedule among Chrysler Credit Canada Ltd., CORE
Trust and Chrysler Financial Corporation, dated as of December 22,
1994, with respect to the sale of retail automotive receivables to
CORE Trust. Filed as Exhibit 10-HHH to the Annual Report on Form
10-K of Chrysler Financial Corporation for the year ended December
31, 1994, and incorporated herein by reference.
10-PP Copy of Asset Purchase Agreement, dated as of December 14, 1994,
between Chrysler Capital Income Partners, L.P. and First Union
Commercial Corporation. Filed as Exhibit 10-III to the Annual
Report on Form 10-K of Chrysler Financial Corporation for the year
ended December 31, 1994, and incorporated herein by reference.
10-QQ Copy of Receivables Purchase Agreement, dated as of December 15,
1994, among Chrysler Financial Corporation, Premier Auto
Receivables Company and ABN AMRO Bank, N.V. as Agent, with respect
to the sale of retail automotive receivables to Windmill Funding
Corporation. Filed as Exhibit 10-JJJ to the Annual Report on Form
10-K of Chrysler Financial Corporation for the year ended December
31, 1994, and incorporated herein by reference.
10-RR Copy of Pooling and Servicing Agreement, dated as of August 1,
1990, among Chrysler Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and The Fuji Bank and Trust
Company, as Trustee, with respect to CARCO DEALRs Wholesale Trust
1990-A. Filed as Exhibit 10-HHH to the Annual Report of Chrysler
Financial Corporation on Form 10-K for the year ended December 31,
1990, and incorporated herein by reference.
10-SS Copy of Amendment, dated as of September 23, 1991, to the Pooling
and Servicing Agreement, dated August 1, 1990, among Chrysler Auto
Receivables Company, as Seller, Chrysler Credit Corporation, as
Servicer, and The Fuji Bank and Trust Company, as Trustee, with
respect to CARCO DEALRs Wholesale Trust 1990-A. Filed as Exhibit
10-NN to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1991, and incorporated
herein by reference.
10-TT Copy of Receivables Purchase Agreement, dated as of August 16,
1990, between Chrysler Auto Receivables Company, as Buyer, and
Chrysler Credit Corporation, as Seller, with respect to CARCO
DEALRs Wholesale Trust 1990-A. Filed as Exhibit 10-III to the
Annual Report of Chrysler Financial Corporation on Form 10-K for
the year ended December 31, 1990, and incorporated herein by
reference.
10-UU Copy of Receivables Sales Agreement, dated as of August 16, 1990,
between Chrysler Financial Corporation and Chrysler Credit
Corporation, with respect to CARCO DEALRs Wholesale Trust 1990-A.
Filed as Exhibit 10-JJJ to the Annual Report of Chrysler Financial
Corporation on Form 10-K for the year ended December 31, 1990, and
incorporated herein by reference.
10-VV Copy of Pooling and Servicing Agreement, dated as of October 1,
1990, among Chrysler Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and The Fuji Bank and Trust
Company, as Trustee, related to Money Market Auto Loan Trust
1990-1. Filed as Exhibit 4-A to the Registration of Certain Classes
of Securities Report of Money Market Auto Loan Trust 1990-1 on
Form 8-A, and incorporated herein by reference.
22
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-WW Copy of Amendment No. 1 to the Pooling and Servicing Agreement,
dated as of June 29, 1992, among Chrysler Auto Receivables Company,
as Seller, Chrysler Credit Corporation, as Servicer, and The Fuji
Bank and Trust Company, as Trustee, with respect to Money Market
Auto Loan Trust 1990-1. Filed as Exhibit 4-B to the Quarterly
Report of Money Market Auto Loan Trust 1990-1 on Form 10-Q for the
quarter ended June 30, 1992, and incorporated herein by reference.
10-XX Copy of Pooling and Servicing Agreement, dated as of November 1,
1991, among Chrysler Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and The Fuji Bank and Trust
Company, as Trustee, with respect to Select Auto Receivables Trust
1991-5. Filed as Exhibit 4-A to the Annual Report on Form 10-K of
Select Auto Receivables Trust 1991-5 for the year ended December
31, 1991, and incorporated herein by reference.
10-YY Copy of Standard Terms and Conditions of Agreement, dated as of
November 1, 1991, between Chrysler Auto Receivables Company, as
Seller, and Chrysler Credit Corporation, as Servicer, with respect
to Select Auto Receivables Trust 1991-5. Filed as Exhibit 4-B to
the Annual Report on Form 10-K of Select Auto Receivables Trust
1991-5 for the year ended December 31, 1991, and incorporated
herein by reference.
10-ZZ Copy of Purchase Agreement, dated as of November 1, 1991, between
Chrysler Financial Corporation and Chrysler Auto Receivables
Company with respect to Select Auto Receivables Trust 1991-5. Filed
as Exhibit 4-C to the Annual Report on Form 10-K of Select Auto
Receivables Trust 1991-5 for the year ended December 31, 1991, and
incorporated herein by reference.
10-AAA Copy of Pooling and Servicing Agreement, dated as of December 1,
1991, among U.S. Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and LaSalle National Bank, as
Trustee, with respect to CFC-15 Grantor Trust. Filed as Exhibit
10-PPPP to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1991, and incorporated
herein by reference.
10-BBB Copy of Pooling and Servicing Agreement, dated as of January 1,
1992, among Chrysler Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and LaSalle National Bank, as
Trustee, with respect to CFC-16 Grantor Trust. Filed as Exhibit
10-QQQQ to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1991, and incorporated
herein by reference.
10-CCC Copy of Standard Terms and Conditions of Agreement, dated as of
January 1, 1992, between Chrysler Auto Receivables Company, as
Seller, and Chrysler Credit Corporation, as Servicer, with respect
to CFC-16 Grantor Trust. Filed as Exhibit 10-RRRR to the Annual
Report of Chrysler Financial Corporation on Form 10-K for the year
ended December 31, 1991, and incorporated herein by reference.
10-DDD Copy of Purchase Agreement, dated as of January 1, 1992 between
Chrysler Financial Corporation and Chrysler Auto Receivables
Company with respect to CFC-16 Grantor Trust. Filed as Exhibit
10-SSSS to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1991, and incorporated
herein by reference.
23
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-EEE Copy of Sale and Servicing Agreement, dated as of January 1, 1992,
among Premier Auto Trust 1992-1, as Issuer, U.S. Auto Receivables
Company, as Seller, and Chrysler Credit Corporation, as Servicer,
with respect to Premier Auto Trust 1992-1. Filed as Exhibit 10-QQQQ
to the Registration Statement of Chrysler Financial Corporation, on
Form S-2 (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-FFF Copy of Trust Agreement, dated as of January 1, 1992, between U.S.
Auto Receivables Company and Chemical Bank Delaware, as Owner
Trustee, with respect to Premier Auto Trust 1992-1. Filed as
Exhibit 10-RRRR to the Registration Statement of Chrysler Financial
Corporation on Form S-2 (Registration Statement No. 33-51302) on
November 24, 1992, and incorporated herein by reference.
10-GGG Copy of Purchase Agreement, dated as of January 1, 1992, between
Chrysler Financial Corporation, as Seller, and U.S. Auto
Receivables Company, as Purchaser, with respect to Premier Auto
Trust 1992-1. Filed as Exhibit 10-SSSS to the Registration
Statement of Chrysler Financial Corporation on Form S-2
(Registration Statement No. 33-51302) on November 24, 1992, and
incorporated herein by reference.
10-HHH Copy of Pooling and Servicing Agreement, dated as of January 1,
1992, among Chrysler Financial Corporation, as Master Servicer,
Chrysler First Business Credit Corporation, as Seller, and Security
Pacific National Bank, as Trustee, with respect to U.S. Business
Equity Loan Trust 1992-1. Filed as Exhibit 4-A to the Quarterly
Report on Form 10-Q of U.S. Business Equity Loan Trust 1992-1 for
the quarter ended March 31, 1992, and incorporated herein by
reference.
10-III Copy of First Amendment, dated as of November 8, 1991, to the
Series 1991-3 Supplement, dated as of June 30, 1991, among Chrysler
Credit Corporation, as Servicer, U.S. Auto Receivables Company, as
Seller, and Manufacturers and Traders Trust Company, as Trustee,
with respect to CARCO Auto Loan Master Trust. Filed as Exhibit 4-H
to the Quarterly Report on Form 10-Q of CARCO Auto Loan Master
Trust for the quarter ended March 31, 1992, and incorporated herein
by reference.
10-JJJ Copy of Indenture, dated as of March 1, 1992, between Premier Auto
Trust 1992-2 and Bankers Trust Company, with respect to Premier
Auto Trust 1992-2 Asset Backed Notes. Filed as Exhibit 4-A to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1992-2 for the
quarter ended March 31, 1992, and incorporated herein by reference.
10-KKK Copy of a 6-3/8% Asset Backed Note with respect to Premier Auto
Trust 1992-2 Asset Backed Notes. Filed as Exhibit 4-B to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1992-2 for the
quarter ended March 31, 1992, and incorporated herein by reference.
10-LLL Copy of Trust Agreement, dated as of March 1, 1992, between U.S.
Auto Receivables Company and Manufacturers Hanover Bank (Delaware)
with respect to Premier Auto Trust 1992-2 Asset Backed
Certificates. Filed as Exhibit 4-C to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-2 for the quarter ended March 31,
1992, and incorporated herein by reference.
24
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-MMM Copy of Indenture, dated as of May 1, 1992, between Premier Auto
Trust 1992-3 and Bankers Trust Company with respect to Premier Auto
Trust 1992-3. Filed as Exhibit 4-A to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-3 for the quarter ended June 30,
1992, and incorporated herein by reference.
10-NNN Copy of a 5.90% Asset Backed Note with respect to Premier Auto
Trust 1992-3. Filed as Exhibit 4-B to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-3 for the quarter ended June 30,
1992, and incorporated herein by reference.
10-OOO Copy of Trust Agreement, dated as of April 1, 1992, as amended and
restated as of May 1, 1992, between Premier Auto Receivables
Company and Manufacturers Hanover Bank (Delaware) with respect to
Premier Auto Trust 1992-3. Filed as Exhibit 4-C to the Quarterly
Report on Form 10-Q of Premier Auto Trust 1992-3 for the quarter
ended June 30, 1992, and incorporated herein by reference.
10-PPP Copy of Receivables Purchase Agreement, dated as of April 15, 1992,
between Chrysler Credit Canada Ltd., Chrysler Financial Corporation
and Associated Assets Acquisition Inc. with respect to Canadian
Auto Receivables Securitization 1992-1. Filed as Exhibit 10-IIIII
to the Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-QQQ Copy of Indenture, dated as of July 1, 1992, between Premier Auto
Trust 1992-4 and Bankers Trust Company with respect to Premier Auto
Trust 1992-4. Filed as Exhibit 4-A to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-4 for the quarter ended September
30, 1992, and incorporated herein by reference.
10-RRR Copy of 5.05% Asset Backed Note with respect to Premier Auto Trust
1992-4. Filed as Exhibit 4-B to the Quarterly Report on Form 10-Q
of Premier Auto Trust 1992-4 for the quarter ended September 30,
1992, and incorporated herein by reference.
10-SSS Copy of Trust Agreement, dated as of July 1, 1992, between Premier
Auto Receivables Company and Chemical Bank Delaware, with respect
to Premier Auto Trust 1992-4. Filed as Exhibit 4-C to the Quarterly
Report on Form 10-Q of Premier Auto Trust 1992-4 for the quarter
ended September 30, 1992, and incorporated herein by reference.
10-TTT Copy of Receivables Purchase Agreement, dated as of August 18,
1992, between Chrysler Credit Ltd., Chrysler Financial Corporation
and Associated Assets Acquisition Inc. with respect to Canadian
Auto Receivables Securitization 1992-2. Filed as Exhibit 10-OOOOO
to the Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-UUU Copy of Indenture, dated as of September 1, 1992, between Premier
Auto Trust 1992-5 and Bankers Trust Company with respect to Premier
Auto Trust 1992-5. Filed as Exhibit 4-A to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1992-5 for the quarter ended
September 30, 1992, and incorporated herein by reference.
10-VVV Copy of a 4.55% Asset Backed Note with respect to Premier Auto
Trust 1992-5. Filed as Exhibit 4-B to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-5 for the quarter ended September
30, 1992, and incorporated herein by reference.
25
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-WWW Copy of Trust Agreement, dated as of September 1, 1992, between
Premier Auto Receivables Company and Manufacturers Hanover Bank
(Delaware) with respect to Premier Auto Trust 1992-5. Filed as
Exhibit 4-C to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1992-5 for the quarter ended September 30, 1992, and
incorporated herein by reference.
10-XXX Copy of Series 1992-2 Supplement to the Pooling and Servicing
Agreement, dated as of October 1, 1992, among U.S. Auto Receivables
Company, as Seller, Chrysler Credit Corporation, as Servicer, and
Manufacturers and Traders Trust Company, as Trustee, with respect
to CARCO Auto Loan Master Trust, Series 1992-2. Filed as Exhibit 3
to Form 8-A of CARCO Auto Loan Master Trust on October 30, 1992,
and incorporated herein by reference.
10-YYY Copy of Master Custodial and Servicing Agreement, dated as of
September 1, 1992 between Chrysler Credit Canada Ltd. and The Royal
Trust Company, as Custodian. Filed as Exhibit 10-TTTTT to the
Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-ZZZ Copy of Trust Indenture, dated as of September 1, 1992, among
Canadian Dealer Receivables Corporation and Montreal Trust Company
of Canada, as Trustee. Filed as Exhibit 10-UUUUU to the
Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-AAAA Copy of Servicing Agreement, dated as of October 20, 1992, between
Chrysler Leaserve, Inc. (a subsidiary of General Electric Capital
Auto Lease, Inc.) and Chrysler Credit Corporation, with respect to
the sale of Gold Key Leases. Filed as Exhibit 10-YYYYY to the
Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-BBBB Copy of Second Amendment dated as of August 24, 1992 to the Series
1991-3 Supplement dated as of June 30, 1991, among U.S. Auto
Receivables Company ("USA"), as seller (the "Seller"), Chrysler
Credit Corporation, as servicer (the "Servicer") and Manufacturers
and Traders Trust Company, as trustee (the "Trustee"), to the
Pooling and Servicing Agreement dated as of May 31, 1991, as
assigned by Chrysler Auto Receivables Company to USA on August 8,
1991, as amended by the First Amendment dated as of August 6, 1992,
among the Seller, the Servicer and the Trustee, with respect to
CARCO Auto Loan Master Trust. Filed as Exhibit 4-O to the Quarterly
Report on Form 10-Q of CARCO Auto Loan Master Trust for the quarter
ended September 30, 1992, and incorporated herein by reference.
10-CCCC Copy of Sale and Servicing Agreement, dated as of November 1, 1992,
among Premier Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Premier Auto Trust 1992-6, as
Purchaser, with respect to Premier Auto Trust 1992-6. Filed as
Exhibit 10-PPPPPP to the Annual Report of Chrysler Financial
Corporation on Form 10-K for the year ended December 31, 1992, and
incorporated herein by reference.
26
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-DDDD Copy of Trust Agreement, dated as of November 1, 1992, among ML
Asset Backed Corporation, Premier Auto Receivables Company and
Chemical Bank Delaware as Owner Trustee, with respect to Premier
Auto Trust 1992-6. Filed as Exhibit 10-QQQQQQ to the Annual Report
of Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1992, and incorporated herein by reference.
10-EEEE Copy of Sale and Servicing Agreement, dated as of January 1, 1993,
among Premier Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Premier Auto Trust 1993-1, as
Purchaser, with respect to Premier Auto Trust 1993-1. Filed as
Exhibit 10-RRRRRR to the Annual Report of Chrysler Financial
Corporation on Form 10-K for the year ended December 31, 1992, and
incorporated herein by reference.
10-FFFF Copy of Trust Agreement, dated as of January 1, 1993, among ML
Asset Backed Corporation, Premier Auto Receivables Company and
Chemical Bank Delaware, as Owner Trustee, with respect to Premier
Auto Trust 1993-1. Filed as Exhibit 10-SSSSSS to the Annual Report
of Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1992, and incorporated herein by reference.
10-GGGG Copy of Receivables Purchase Agreement, dated as of November 25,
1992, between Chrysler Credit Canada Ltd., Chrysler Financial
Corporation and Associated Assets Acquisitions Inc. with respect to
Canadian Auto Receivables Securitization 1992-3. Filed as Exhibit
10-TTTTTT to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1992, and incorporated
herein by reference.
10-HHHH Copy of Purchase Agreement, dated as of January 25, 1993, among
Chrysler Credit Canada Ltd., Auto 1 Limited Partnership and
Chrysler Financial Corporation, with respect to Auto 1 Trust. Filed
as Exhibit 10-UUUUUU to the Annual Report of Chrysler Financial
Corporation on Form 10-K for the year ended December 31, 1992, and
incorporated herein by reference.
10-IIII Copy of Master Lease Agreement, dated as of January 25, 1993, among
Chrysler Credit Canada Ltd., Chrysler Canada Ltd. and Auto 1
Limited Partnership, with respect to Auto 1 Trust. Filed as Exhibit
10-VVVVVV to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1992, and incorporated
herein by reference.
10-JJJJ Copy of Amended and Restated Trust Agreement, dated as of August 1,
1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1993-4. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1993-4 for the
quarter ended September 30, 1993, and incorporated herein by
reference.
10-KKKK Copy of Indenture, dated as of August 1, 1993, between Premier Auto
Trust 1993-4 and Bankers Trust Company, as Indenture Trustee, with
respect to Premier Auto Trust 1993-4. Filed as Exhibit 4.2 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1993-4 for the
quarter ended September 30, 1993, and incorporated herein by
reference.
27
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-LLLL Copy of Amended and Restated Trust Agreement, dated as of August 1,
1994, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1994-4. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1994-4 for the
quarter ended September 30, 1994, and incorporated herein by
reference.
10-MMMM Copy of Indenture, dated as of August 1, 1994, between Premier Auto
Trust 1994-4 and Bankers Trust Company, as Indenture Trustee. Filed
as Exhibit 4.2 to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1994-4 for the quarter ended September 30, 1994, and
incorporated herein by reference.
10-NNNN Copy of Receivables Purchase Agreement, dated as of February 28,
1995, among Chrysler Financial Corporation, Premier Auto
Receivables Company and ABN AMRO Bank, N.V., with respect to the
sale of retail automotive receivables to Windmill Funding
Corporation. Filed as Exhibit 10-GGGG to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
March 31, 1995, and incorporated herein by reference.
10-OOOO Copy of Series 1994-1 Supplement, dated as of September 30, 1994,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1994-1. Filed as Exhibit 3 to the Registration Statement on
Form 8-A of CARCO Auto Loan Master Trust dated November 23, 1994,
and incorporated herein by reference.
10-PPPP Copy of Series 1994-2 Supplement, dated as of October 31, 1994,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust
1994-2. Filed as Exhibit 3 to the Registration Statement on Form
8-A of CARCO Auto Loan Master Trust dated December 22, 1994, and
incorporated herein by reference.
10-QQQQ Copy of Series 1994-3 Supplement, dated as of November 30, 1994,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1994-3. Filed as Exhibit 4-W to the Annual Report on Form
10-K of CARCO Auto Loan Master Trust for the year ended December
31, 1994, and incorporated herein by reference.
10-RRRR Copy of Series 1995-1 Supplement, dated as of December 31, 1994,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1995-1. Filed as Exhibit 3 to the Registration Statement on
Form 8-A of CARCO Auto Loan Master Trust dated January 19, 1995,
and incorporated herein by reference.
28
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
10-SSSS Copy of Series 1995-2 Supplement, dated as of February 28, 1995,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust
1995-2. Filed as Exhibit 3 to CARCO Auto Loan Master Trust's
Registration Statement on Form 8-A dated March 27, 1995,and
incorporated herein by reference.
10-TTTT Copy of Amended and Restated Trust Agreement, dated as of February
1, 1995, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1995-1. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995
of Premier Auto Trust 1995-1, and incorporated herein by
reference.
10-UUUU Copy of Indenture, dated as of February 1, 1995, between Premier
Auto Trust 1995-1 and The Bank of New York, as Indenture Trustee,
with respect to Premier Auto Trust 1995-1. Filed as Exhibit
4.2 to the Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995 of Premier Auto Trust 1995-1, and incorporated
herein by reference.
10-VVVV Copy of Sale and Servicing Agreement, dated as of February 1, 1995,
among Premier Auto Trust 1995-1, Chrysler Credit Corporation and
Chrysler Financial Corporation, with respect to Premier Auto Trust
1995-1. Filed as Exhibit 4.3 to the Quarterly Report on Form 10-Q
for the quarter ended March 31, 1995 of Premier Auto Trust 1995-1,
and incorporated herein by reference.
29
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
12-A Chrysler Financial Corporation and Subsidiaries Computations of
Ratios of Earnings to Fixed Charges.
12-B Chrysler Corporation Enterprise as a Whole Computations of Ratios
of Earnings to Fixed Charges and Preferred Stock Dividend
Requirements.
15-A Letter regarding unaudited interim financial information.
15-B Independent Accountants' Letter in lieu of Consent.
27 Financial Data Schedule.
30
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - CONTINUED
- ------- --------------------------------------------
Copies of instruments defining the rights of holders of long-term debt of
the registrant and its consolidated subsidiaries, other than the instruments
copies of which are filed with this report as Exhibit 4-A, 4-B, 4-C, 4-D,
4-E, 4-F, 4-G, 4-H, 4-I, 4-J, 4-K, 4-L, 4-M, 4-N, 4-O, and 4-P thereto, have
not been filed as exhibits to this report since the amount of securities
authorized under any one of such instruments does not exceed 10% of the
total assets of the registrant and its subsidiaries on a consolidated basis.
The registration agrees to furnish to the Commission a copy of each such
instrument upon request.
(b) The registrant filed the following reports on Form 8-K during the quarter
ended March 31, 1995.
Date of Report Date Filed Item Reported
-------------- ---------- -------------
May 5, 1995 May 9, 1995 5
Financial Statements Filed
Copy of the audited financial statements for Chrysler Financial Corporation
and subsidiaries for the quarter ended March 31, 1995, and the related
Independent Accountant's Report.
31
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Chrysler Financial Corporation
------------------------------
(Registrant)
Date: July 18, 1995 By: /s/T. F. Gilman
-----------------------------
T. F. Gilman
Vice President and Controller
Principal Accounting Officer
32
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
3-A Copy of the Restated Articles of Incorporation of Chrysler
Financial Corporation as adopted and filed with the Corporation
Division of the Michigan Department of Treasury on October 1, 1971.
Filed as Exhibit 3-A to Registration No. 2-43097 of Chrysler
Financial Corporation, and incorporated herein by reference.
3-B Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on December 26, 1975, April 23,
1985 and June 21, 1985, respectively. Filed as Exhibit 3-B to the
Annual Report of Chrysler Financial Corporation on Form 10-K for
the year ended December 31, 1985, and incorporated herein by
reference.
3-C Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on August 12, 1987 and August 14,
1987, respectively. Filed as Exhibit 3 to the Quarterly Report of
Chrysler Financial Corporation on Form 10-Q for the quarter ended
September 30, 1987, and incorporated herein by reference.
3-D Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on December 11, 1987 and January
25, 1988, respectively. Filed as Exhibit 3-D to the Annual Report
of Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1987, and incorporated herein by reference.
3-E Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on June 13, 1989 and June 23,
1989, respectively. Filed as Exhibit 3-E to the Quarterly Report of
Chrysler Financial Corporation on Form 10-Q for the quarter ended
June 30, 1989, and incorporated herein by reference.
3-F Copies of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on September 13, 1989, January
31, 1990 and March 8, 1990, respectively. Filed as Exhibit 3-E to
the Annual Report of Chrysler Financial Corporation on Form 10-K
for the year ended December 31, 1989, and incorporated herein by
reference.
3-G Copy of amendments to the Restated Articles of Incorporation of
Chrysler Financial Corporation filed with the Department of
Commerce of the State of Michigan on March 29, 1990 and May 10,
1990. Filed as Exhibit 3-G to the Quarterly Report of Chrysler
Financial Corporation on Form 10-Q for the quarter ended March 31,
1990, and incorporated herein by reference.
3-H Copy of the By-Laws of Chrysler Financial Corporation as amended to
March 2, 1987. Filed as Exhibit 3-C to the Annual Report of
Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1986, and incorporated herein by reference.
3-I Copy of the By-Laws of Chrysler Financial Corporation as amended to
August 1, 1990. Filed as Exhibit 3-I to the Quarterly Report of
Chrysler Financial Corporation on Form 10-Q for the quarter ended
September 30, 1990, and incorporated herein by reference.
E-1
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
3-J Copy of By-Laws of Chrysler Financial Corporation as amended to
January 1, 1992, and presently in effect. Filed as Exhibit 3-H to
the Annual Report of Chrysler Financial Corporation on Form 10-K
for the year ended December 31, 1991, and incorporated herein by
reference.
4-A Copy of Indenture, dated as of June 15, 1984, between Chrysler
Financial Corporation and Manufacturers Hanover Trust Company, as
Trustee, United States Trust Company of New York, as successor
Trustee, related to Senior Debt Securities of Chrysler Financial
Corporation. Filed as Exhibit (1) to the Current Report of Chrysler
Financial Corporation on Form 8-K, dated June 26, 1984, and
incorporated herein by reference.
4-B Copy of Indenture, dated as of September 15, 1986, between Chrysler
Financial Corporation and Manufacturers Hanover Trust Company,
Trustee, United States Trust Company of New York, as successor
Trustee, related to Chrysler Financial Corporation Senior Debt
Securities. Filed as Exhibit 4-E to the Quarterly Report of
Chrysler Financial Corporation on Form 10-Q for the quarter ended
September 30, 1986, and incorporated herein by reference.
4-C Copy of Amended and Restated Indenture, dated as of September 15,
1986, between Chrysler Financial Corporation and Manufacturers
Hanover Trust Company, Trustee, United States Trust Company of New
York, as successor Trustee, related to Chrysler Financial
Corporation Senior Debt Securities. Filed as Exhibit 4-H to the
Quarterly Report of Chrysler Financial Corporation on Form 10-Q for
the quarter ended June 30, 1987, and incorporated herein by
reference.
4-D Copy of Indenture, dated as of February 15, 1988, between Chrysler
Financial Corporation and Manufacturers Hanover Trust Company,
Trustee, United States Trust Company of New York, as successor
Trustee, related to Chrysler Financial Corporation Senior Debt
Securities. Filed as Exhibit 4-A to Registration No. 33-23479 of
Chrysler Financial Corporation, and incorporated herein by
reference.
4-E Copy of First Supplemental Indenture, dated as of March 1, 1988,
between Chrysler Financial Corporation and Manufacturers Hanover
Trust Company, Trustee, United States Trust Company of New York, as
successor Trustee, to the Indenture, dated as of February 15, 1988,
between such parties, related to Chrysler Financial Corporation
Senior Debt Securities. Filed as Exhibit 4-L to the Annual Report
of Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1987, and incorporated herein by reference.
4-F Copy of Second Supplemental Indenture, dated as of September 7,
1990, between Chrysler Financial Corporation and Manufacturers
Hanover Trust Company, Trustee, United States Trust Company of New
York, as successor Trustee, to the Indenture, dated as of February
15, 1988, between such parties, related to Chrysler Financial
Corporation Senior Debt Securities. Filed as Exhibit 4-M to the
Quarterly Report of Chrysler Financial Corporation on Form 10-Q for
the quarter ended September 30, 1990, and incorporated herein by
reference.
E-2
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
4-G Copy of Third Supplemental Indenture, dated as of May 4, 1992,
between Chrysler Financial Corporation and United States Trust
Company of New York, as successor Trustee, to the Indenture, dated
as of February 15, 1988 between such parties, relating to Chrysler
Financial Corporation Senior Debt Securities. Filed as Exhibit 4-N
to the Quarterly Report of Chrysler Financial Corporation on Form
10-Q for the quarter ended June 30, 1992, and incorporated herein
by reference.
4-H Copy of Indenture, dated as of February 15, 1988, between Chrysler
Financial Corporation and IBJ Schroder Bank & Trust Company,
Trustee, related to Chrysler Financial Corporation Subordinated
Debt Securities. Filed as Exhibit 4-B to Registration No. 33-23479
of Chrysler Financial Corporation, and incorporated herein by
reference.
4-I Copy of First Supplemental Indenture, dated as of September 1,
1989, between Chrysler Financial Corporation and IBJ Schroder Bank
& Trust Company, Trustee, to the Indenture, dated as of February
15, 1988, between such parties, related to Chrysler Financial
Corporation Subordinated Debt Securities. Filed on September 13,
1989 as Exhibit 4-N to the Current Report of Chrysler Financial
Corporation on Form 8-K dated September 1, 1989, and incorporated
herein by reference.
4-J Copy of Indenture, dated as of February 15, 1988, between Chrysler
Financial Corporation and Irving Trust Company, Trustee, related to
Chrysler Financial Corporation Junior Subordinated Debt Securities.
Filed as Exhibit 4-C to Registration No. 33-23479 of Chrysler
Financial Corporation, and incorporated herein by reference.
4-K Copy of First Supplemental Indenture, dated as of September 1,
1989, between Chrysler Financial Corporation and Irving Trust
Company, Trustee, to the Indenture, dated as of February 15, 1988,
between such parties, related to Chrysler Financial Corporation
Junior Subordinated Debt Securities. Filed on September 13, 1989 as
Exhibit 4-O to the Current Report of Chrysler Financial Corporation
on Form 8-K dated September 1, 1989, and incorporated herein by
reference.
10-A Copy of Income Maintenance Agreement, made December 20, 1968, among
Chrysler Financial Corporation, Chrysler Corporation and Chrysler
Motors Corporation. Filed as Exhibit 13-D to Registration Statement
No. 2-32037 of Chrysler Financial Corporation, and incorporated
herein by reference.
10-B Copy of Agreement, made April 19, 1971, among Chrysler Financial
Corporation, Chrysler Corporation and Chrysler Motors Corporation,
amending the Income Maintenance Agreement among such parties. Filed
as Exhibit 13-B to Registration Statement No. 2-40110 of Chrysler
Financial Corporation and Chrysler Corporation, and incorporated
herein by reference.
10-C Copy of Agreement, made May 29, 1973, among Chrysler Financial
Corporation, Chrysler Corporation and Chrysler Motors Corporation,
further amending the Income Maintenance Agreement among such
parties. Filed as Exhibit 5-C to Registration Statement No. 2-49615
of Chrysler Financial Corporation, and incorporated herein by
reference.
E-3
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-D Copy of Agreement, made as of July 1, 1975, among Chrysler
Financial Corporation, Chrysler Corporation and Chrysler Motors
Corporation, further amending the Income Maintenance Agreement
among such parties. Filed as Exhibit D to the Annual Report of
Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1975, and incorporated herein by reference.
10-E Copy of Agreement, made June 4, 1976, between Chrysler Financial
Corporation and Chrysler Corporation further amending the Income
Maintenance Agreement between such parties. Filed as Exhibit 5-H to
Registration Statement No. 2-56398 of Chrysler Financial
Corporation, and incorporated herein by reference.
10-F Copy of Agreement, made March 27, 1986, between Chrysler Financial
Corporation, Chrysler Holding Corporation (now known as Chrysler
Corporation) and Chrysler Corporation (now known as Chrysler Motors
Corporation) further amending the Income Maintenance Agreement
among such parties. Filed as Exhibit 10-F to the Annual Report of
Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1986, and incorporated herein by reference.
10-G Copy of Short Term Revolving Credit Agreement, dated as of May 1,
1995, among Chrysler Financial Corporation, Chrysler Credit Canada
Ltd., the several commercial banks party thereto, as Managing
Agents, Royal Bank of Canada, as Canadian Administrative Agent, and
Chemical Bank, as Administrative Agent.
10-H Copy of Long Term Revolving Credit Agreement, dated as of May 1,
1995, among Chrysler Financial Corporation, Chrysler Credit Canada
Ltd., the several commercial banks party thereto, as Managing
Agents, Royal Bank of Canada, as Canadian Administrative Agent, and
Chemical Bank, as Administrative Agent.
10-I Copy of Fifth Amended and Restated Commitment Transfer Agreement,
dated as of May 1, 1995, among Chrysler Financial Corporation, the
several financial institutions parties thereto and Chemical Bank,
as agent.
10-J Copy of Amended and Restated Trust Agreement, dated as of April 1,
1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1993-2. Filed as Exhibit 4.1 to the
Quarterly Report of Premier Auto Trust 1993-2 on Form 10-Q for the
quarter ended June 30, 1993, and incorporated herein by reference.
10-K Copy of Indenture, dated as of April 1, 1993, between Premier Auto
Trust 1993-2 and Bankers Trust Company, as Indenture Trustee, with
respect to Premier Auto Trust 1993-2. Filed as Exhibit 4.2 of the
Quarterly Report of Premier Auto Trust 1993-2 on Form 10-Q for the
quarter ended June 30, 1993, and incorporated herein by reference.
10-L Copy of Amended and Restated Trust Agreement, dated as of June 1,
1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1993-3. Filed as Exhibit 4.1 to the
Quarterly Report of Premier Auto Trust 1993-3 on Form 10-Q for the
quarter ended June 30, 1993, and incorporated herein by reference.
E-4
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-M Copy of Indenture, dated as of June 1, 1993, between Premier Auto
Trust 1993-3 and Bankers Trust Company, as Indenture Trustee. Filed
as Exhibit 4.2 to the Quarterly Report of Premier Auto Trust 1993-3
on Form 10-Q for the quarter ended June 30, 1993, and incorporated
herein by reference.
10-N Copy of Series 1993-1 Supplement, dated as of February 1, 1993,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1993-1. Filed as Exhibit 3 to the Trust's Registration
Statement on Form 8-A dated March 15, 1993, and incorporated herein
by reference.
10-O Copy of Receivables Purchase Agreement, made as of April 7, 1993,
among Chrysler Credit Canada Ltd., Chrysler Financial Corporation
and Association Assets Acquisition Inc., with respect to CARS
1993-1. Filed as Exhibit 10-OOOO to the Quarterly Report on Form
10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-P Copy of Receivables Purchase Agreement, made as of June 29, 1993,
among Chrysler Credit Canada Ltd., Chrysler Financial Corporation
and Associated Assets Acquisition Inc., with respect to CARS
1993-2. Filed as Exhibit 10-PPPP to the Quarterly Report on Form
10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-Q Copy of Pooling and Servicing Agreement, dated as of August 1,
1993, among Auto Receivables Corporation, Chrysler Credit Canada
Ltd., Montreal Trust Company of Canada and Chrysler Financial
Corporation, with respect to CARCO 1993-1. Filed as Exhibit 10-QQQQ
to the Quarterly Report on Form 10-Q of Chrysler Financial
Corporation for the quarter ended September 30, 1993, and
incorporated herein by reference.
10-R Copy of Standard Terms and Conditions of Agreement, dated as of
August 1, 1993, among Auto Receivables Corporation, Chrysler Credit
Canada Ltd. and Chrysler Financial Corporation, with respect to
CARCO 1993-1. Filed as Exhibit 10-RRRR to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-S Copy of Purchase Agreement, dated as of August 1, 1993, between
Chrysler Credit Canada Ltd., and Auto Receivables Corporation, with
respect to CARCO 1993-1. Filed as Exhibit 10-SSSS to the Quarterly
Report on Form 10-Q of Chrysler Financial Corporation for the
quarter ended September 30, 1993, and incorporated herein by
reference.
10-T Copy of Asset Purchase Agreement, dated as of July 31, 1993,
between Chrysler Rail Transportation Corporation and General
Electric Railcar Leasing Services Corporation. Filed as Exhibit
10-WWWW to the Quarterly Report on Form 10-Q of Chrysler Financial
Corporation for the quarter ended September 30, 1993, and
incorporated herein by reference.
E-5
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-U Copy of Amended and Restated Loan Agreement, dated as of June 1,
1993, between Chrysler Realty Corporation and Chrysler Credit
Corporation. Filed as Exhibit 10-XXXX to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-V Copy of Origination and Servicing Agreement, dated as of June 4,
1993, among Chrysler Leaserve, Inc., General Electric Capital Auto
Lease, Inc., Chrysler Credit Corporation and Chrysler Financial
Corporation. Filed as Exhibit 10-ZZZZ to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-W Copy of Amended and Restated Trust Agreement, dated as of September
1, 1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Trustee, with respect to
Premier Auto Trust 1993-5. Filed as Exhibit 4.1 to the Quarterly
Report of Premier Auto Trust 1993-5 on Form 10-Q for the quarter
ended September 30, 1993, and incorporated herein by reference.
10-X Copy of Indenture, dated as of September 1, 1993, between Premier
Auto Trust 1993-5 and Bankers Trust Company, as Indenture Trustee,
with respect to Premier Auto Trust 1993-5. Filed as Exhibit 4.2 to
the Quarterly Report of Premier Auto Trust 1993-5 on Form 10-Q for
the quarter ended September 30, 1993, and incorporated herein by
reference.
10-Y Copy of Asset Purchase Agreement, dated as of October 29, 1993,
between Marine Asset Management Corporation and Trico Marine
Assets, Inc.. Filed as Exhibit 10-CCCCC to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
September 30, 1993, and incorporated herein by reference.
10-Z Copy of Asset Purchase Agreement, dated as of December 3, 1993,
between Chrysler Rail Transportation Corporation and Allied Railcar
Company. Filed as Exhibit 1O-OOOO to the Annual Report on Form 10-K
of Chrysler Financial Corporation for the year ended December 31,
1993, and incorporated herein by reference.
10-AA Copy of Secured Loan Purchase Agreement, dated as of December 15,
1993, among Chrysler Credit Canada Ltd., Leaf Trust and Chrysler
Financial Corporation. Filed as Exhibit 10-PPPP to the Annual
Report on Form 10-K of Chrysler Financial Corporation for the year
ended December 31, 1993, and incorporated herein by reference.
10-BB Copy of Series 1993-2 Supplement, dated as of November 1, 1993,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1993-2. Filed as Exhibit 3 to the Registration Statement on
Form 8-A of CARCO Auto Loan Master Trust dated December 6, 1993,
and incorporated herein by reference.
E-6
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-CC Copy of Amended and Restated Trust Agreement, dated as of November
1, 1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1993-6. Filed as Exhibit 4-A to the
Annual Report on Form 10-K of Premier Auto Trust 1993-6 for the
year ended December 31, 1993, and incorporated herein by reference.
10-DD Copy of Indenture, dated as of November 1, 1993, between Premier
Auto Trust 1993-6 and The Fuji Bank and Trust Company, as Indenture
Trustee, with respect to Premier Auto Trust 1993-6. Filed as
Exhibit 4-B to the Annual Report on Form 10-K of Premier Auto Trust
1993-6 for the year ended December 31, 1993, and incorporated
herein by reference.
10-EE Copy of Secured Loan Purchase Agreement, dated as of March 29,
1994, among Chrysler Credit Canada Ltd., Leaf Trust and Chrysler
Financial Corporation. Filed as Exhibit 10-ZZZ to the Quarterly
Report of Chrysler Financial Corporation on Form 10-Q for the
quarter ended March 31, 1994, and incorporated herein by reference.
10-FF Copy of Amended and Restated Trust Agreement, dated as of February
1, 1994, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1994-1. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1994-1 for the
quarter ended March 31, 1994, and incorporated herein by reference.
10-GG Copy of Indenture, dated as of February 1, 1994, between Premier
Auto Trust 1994-1 and The Fuji Bank and Trust Company, as Indenture
Trustee, with respect to Premier Auto Trust 1994-1. Filed as
Exhibit 4.2 to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1994-1 for the quarter ended March 31, 1994, and incorporated
herein by reference.
10-HH Copy of Secured Loan Purchase Agreement, dated as of July 6, 1994,
among Chrysler Credit Canada Ltd., Leaf Trust and Chrysler
Financial Corporation. Filed as Exhibit 10-BBBB to the Quarterly
Report on Form 10-Q of Chrysler Financial Corporation for the
quarter ended June 30, 1994, and incorporated herein by reference.
10-II Copy of Amended and Restated Trust Agreement, dated as of May 1,
1994, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1994-2. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1994-2 for the
quarter ended June 30, 1994, and incorporated herein by reference.
10-JJ Copy of Indenture, dated as of May 1, 1994, between Premier Auto
Trust 1994-2 and The Fuji Bank and Trust Company, as Indenture
Trustee, with respect to Premier Auto Trust 1994-2. Filed as
Exhibit 4.2 to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1994-2 for the quarter ended June 30, 1994, and incorporated
herein by reference.
E-7
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-KK Copy of Amended and Restated Trust Agreement, dated as of June 1,
1994, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank, Delaware, with respect to Premier
Auto Trust 1994-3. Filed as Exhibit 4.1 to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1994-3 for the quarter ended June
30, 1994, and incorporated herein by reference.
10-LL Copy of Indenture, dated as of June 1, 1994, between Premier Auto
Trust 1994-3 and The Fuji Bank and Trust Company, as Indenture
Trustee, with respect to Premier Auto Trust 1994-3. Filed as
Exhibit 4.2 to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1994-3 for the quarter ended June 30, 1994, and incorporated
herein by reference.
10-MM Copy of Master Receivables Purchase Agreement among Chrysler Credit
Canada Ltd., CORE Trust and Chrysler Financial Corporation, dated
as of November 29, 1994. Filed as Exhibit 10-FFF to the Annual
Report on Form 10-K of Chrysler Financial Corporation for the year
ended December 31, 1994, and incorporated herein by reference.
10-NN Copy of Terms Schedule among Chrysler Credit Canada Ltd., CORE
Trust and Chrysler Financial Corporation, dated as of December 2,
1994, with respect to the sale of retail automotive receivables to
CORE Trust. Filed as Exhibit 10-GGG to the Annual Report on Form
10-K of Chrysler Financial Corporation for the year ended December
31, 1994, and incorporated herein by reference.
10-OO Copy of Terms Schedule among Chrysler Credit Canada Ltd., CORE
Trust and Chrysler Financial Corporation, dated as of December 22,
1994, with respect to the sale of retail automotive receivables to
CORE Trust. Filed as Exhibit 10-HHH to the Annual Report on Form
10-K of Chrysler Financial Corporation for the year ended December
31, 1994, and incorporated herein by reference.
10-PP Copy of Asset Purchase Agreement, dated as of December 14, 1994,
between Chrysler Capital Income Partners, L.P. and First Union
Commercial Corporation. Filed as Exhibit 10-III to the Annual
Report on Form 10-K of Chrysler Financial Corporation for the year
ended December 31, 1994, and incorporated herein by reference.
10-QQ Copy of Receivables Purchase Agreement, dated as of December 15,
1994, among Chrysler Financial Corporation, Premier Auto
Receivables Company and ABN AMRO Bank, N.V. as Agent, with respect
to the sale of retail automotive receivables to Windmill Funding
Corporation. Filed as Exhibit 10-JJJ to the Annual Report on Form
10-K of Chrysler Financial Corporation for the year ended December
31, 1994, and incorporated herein by reference.
10-RR Copy of Pooling and Servicing Agreement, dated as of August 1,
1990, among Chrysler Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and The Fuji Bank and Trust
Company, as Trustee, with respect to CARCO DEALRs Wholesale Trust
1990-A. Filed as Exhibit 10-HHH to the Annual Report of Chrysler
Financial Corporation on Form 10-K for the year ended December 31,
1990, and incorporated herein by reference.
E-8
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-SS Copy of Amendment, dated as of September 23, 1991, to the Pooling
and Servicing Agreement, dated August 1, 1990, among Chrysler Auto
Receivables Company, as Seller, Chrysler Credit Corporation, as
Servicer, and The Fuji Bank and Trust Company, as Trustee, with
respect to CARCO DEALRs Wholesale Trust 1990-A. Filed as Exhibit
10-NN to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1991, and incorporated
herein by reference.
10-TT Copy of Receivables Purchase Agreement, dated as of August 16,
1990, between Chrysler Auto Receivables Company, as Buyer, and
Chrysler Credit Corporation, as Seller, with respect to CARCO
DEALRs Wholesale Trust 1990-A. Filed as Exhibit 10-III to the
Annual Report of Chrysler Financial Corporation on Form 10-K for
the year ended December 31, 1990, and incorporated herein by
reference.
10-UU Copy of Receivables Sales Agreement, dated as of August 16, 1990,
between Chrysler Financial Corporation and Chrysler Credit
Corporation, with respect to CARCO DEALRs Wholesale Trust 1990-A.
Filed as Exhibit 10-JJJ to the Annual Report of Chrysler Financial
Corporation on Form 10-K for the year ended December 31, 1990, and
incorporated herein by reference.
10-VV Copy of Pooling and Servicing Agreement, dated as of October 1,
1990, among Chrysler Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and The Fuji Bank and Trust
Company, as Trustee, related to Money Market Auto Loan Trust
1990-1. Filed as Exhibit 4-A to the Registration of Certain Classes
of Securities Report of Money Market Auto Loan Trust 1990-1 on Form
8-A, and incorporated herein by reference.
10-WW Copy of Amendment No. 1 to the Pooling and Servicing Agreement,
dated as of June 29, 1992, among Chrysler Auto Receivables Company,
as Seller, Chrysler Credit Corporation, as Servicer, and The Fuji
Bank and Trust Company, as Trustee, with respect to Money Market
Auto Loan Trust 1990-1. Filed as Exhibit 4-B to the Quarterly
Report of Money Market Auto Loan Trust 1990-1 on Form 10-Q for the
quarter ended June 30, 1992, and incorporated herein by reference.
10-XX Copy of Pooling and Servicing Agreement, dated as of November 1,
1991, among Chrysler Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and The Fuji Bank and Trust
Company, as Trustee, with respect to Select Auto Receivables Trust
1991-5. Filed as Exhibit 4-A to the Annual Report on Form 10-K of
Select Auto Receivables Trust 1991-5 for the year ended December
31, 1991, and incorporated herein by reference.
10-YY Copy of Standard Terms and Conditions of Agreement, dated as of
November 1, 1991, between Chrysler Auto Receivables Company, as
Seller, and Chrysler Credit Corporation, as Servicer, with respect
to Select Auto Receivables Trust 1991-5. Filed as Exhibit 4-B to
the Annual Report on Form 10-K of Select Auto Receivables Trust
1991-5 for the year ended December 31, 1991, and incorporated
herein by reference.
E-9
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-ZZ Copy of Purchase Agreement, dated as of November 1, 1991, between
Chrysler Financial Corporation and Chrysler Auto Receivables
Company with respect to Select Auto Receivables Trust 1991-5. Filed
as Exhibit 4-C to the Annual Report on Form 10-K of Select Auto
Receivables Trust 1991-5 for the year ended December 31, 1991, and
incorporated herein by reference.
10-AAA Copy of Pooling and Servicing Agreement, dated as of December 1,
1991, among U.S. Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and LaSalle National Bank, as
Trustee, with respect to CFC-15 Grantor Trust. Filed as Exhibit
10-PPPP to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1991, and incorporated
herein by reference.
10-BBB Copy of Pooling and Servicing Agreement, dated as of January 1,
1992, among Chrysler Auto Receivables Company, as Seller, Chrysler
Credit Corporation, as Servicer, and LaSalle National Bank, as
Trustee, with respect to CFC-16 Grantor Trust. Filed as Exhibit
10-QQQQ to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1991, and incorporated
herein by reference.
10-CCC Copy of Standard Terms and Conditions of Agreement, dated as of
January 1, 1992, between Chrysler Auto Receivables Company, as
Seller, and Chrysler Credit Corporation, as Servicer, with respect
to CFC-16 Grantor Trust. Filed as Exhibit 10-RRRR to the Annual
Report of Chrysler Financial Corporation on Form 10-K for the year
ended December 31, 1991, and incorporated herein by reference.
10-DDD Copy of Purchase Agreement, dated as of January 1, 1992 between
Chrysler Financial Corporation and Chrysler Auto Receivables
Company with respect to CFC-16 Grantor Trust. Filed as Exhibit
10-SSSS to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1991, and incorporated
herein by reference.
10-EEE Copy of Sale and Servicing Agreement, dated as of January 1, 1992,
among Premier Auto Trust 1992-1, as Issuer, U.S. Auto Receivables
Company, as Seller, and Chrysler Credit Corporation, as Servicer,
with respect to Premier Auto Trust 1992-1. Filed as Exhibit 10-QQQQ
to the Registration Statement of Chrysler Financial Corporation, on
Form S-2 (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-FFF Copy of Trust Agreement, dated as of January 1, 1992, between U.S.
Auto Receivables Company and Chemical Bank Delaware, as Owner
Trustee, with respect to Premier Auto Trust 1992-1. Filed as
Exhibit 10-RRRR to the Registration Statement of Chrysler Financial
Corporation on Form S-2 (Registration Statement No. 33-51302) on
November 24, 1992, and incorporated herein by reference.
10-GGG Copy of Purchase Agreement, dated as of January 1, 1992, between
Chrysler Financial Corporation, as Seller, and U.S. Auto
Receivables Company, as Purchaser, with respect to Premier Auto
Trust 1992-1. Filed as Exhibit 10-SSSS to the Registration
Statement of Chrysler Financial Corporation on Form S-2
(Registration Statement No. 33-51302) on November 24, 1992, and
incorporated herein by reference.
E-10
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-HHH Copy of Pooling and Servicing Agreement, dated as of January 1,
1992, among Chrysler Financial Corporation, as Master Servicer,
Chrysler First Business Credit Corporation, as Seller, and Security
Pacific National Bank, as Trustee, with respect to U.S. Business
Equity Loan Trust 1992-1. Filed as Exhibit 4-A to the Quarterly
Report on Form 10-Q of U.S. Business Equity Loan Trust 1992-1 for
the quarter ended March 31, 1992, and incorporated herein by
reference.
10-III Copy of First Amendment, dated as of November 8, 1991, to the
Series 1991-3 Supplement, dated as of June 30, 1991, among Chrysler
Credit Corporation, as Servicer, U.S. Auto Receivables Company, as
Seller, and Manufacturers and Traders Trust Company, as Trustee,
with respect to CARCO Auto Loan Master Trust. Filed as Exhibit 4-H
to the Quarterly Report on Form 10-Q of CARCO Auto Loan Master
Trust for the quarter ended March 31, 1992, and incorporated herein
by reference.
10-JJJ Copy of Indenture, dated as of March 1, 1992, between Premier Auto
Trust 1992-2 and Bankers Trust Company, with respect to Premier
Auto Trust 1992-2 Asset Backed Notes. Filed as Exhibit 4-A to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1992-2 for the
quarter ended March 31, 1992, and incorporated herein by reference.
10-KKK Copy of a 6-3/8% Asset Backed Note with respect to Premier Auto
Trust 1992-2 Asset Backed Notes. Filed as Exhibit 4-B to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1992-2 for the
quarter ended March 31, 1992, and incorporated herein by reference.
10-LLL Copy of Trust Agreement, dated as of March 1, 1992, between U.S.
Auto Receivables Company and Manufacturers Hanover Bank (Delaware)
with respect to Premier Auto Trust 1992-2 Asset Backed
Certificates. Filed as Exhibit 4-C to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-2 for the quarter ended March 31,
1992, and incorporated herein by reference.
10-MMM Copy of Indenture, dated as of May 1, 1992, between Premier Auto
Trust 1992-3 and Bankers Trust Company with respect to Premier Auto
Trust 1992-3. Filed as Exhibit 4-A to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-3 for the quarter ended June 30,
1992, and incorporated herein by reference.
10-NNN Copy of a 5.90% Asset Backed Note with respect to Premier Auto
Trust 1992-3. Filed as Exhibit 4-B to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-3 for the quarter ended June 30,
1992, and incorporated herein by reference.
10-OOO Copy of Trust Agreement, dated as of April 1, 1992, as amended and
restated as of May 1, 1992, between Premier Auto Receivables
Company and Manufacturers Hanover Bank (Delaware) with respect to
Premier Auto Trust 1992-3. Filed as Exhibit 4-C to the Quarterly
Report on Form 10-Q of Premier Auto Trust 1992-3 for the quarter
ended June 30, 1992, and incorporated herein by reference.
E-11
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-PPP Copy of Receivables Purchase Agreement, dated as of April 15, 1992,
between Chrysler Credit Canada Ltd., Chrysler Financial Corporation
and Associated Assets Acquisition Inc. with respect to Canadian
Auto Receivables Securitization 1992-1. Filed as Exhibit 10-IIIII
to the Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-QQQ Copy of Indenture, dated as of July 1, 1992, between Premier Auto
Trust 1992-4 and Bankers Trust Company with respect to Premier Auto
Trust 1992-4. Filed as Exhibit 4-A to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-4 for the quarter ended September
30, 1992, and incorporated herein by reference.
10-RRR Copy of 5.05% Asset Backed Note with respect to Premier Auto Trust
1992-4. Filed as Exhibit 4-B to the Quarterly Report on Form 10-Q
of Premier Auto Trust 1992-4 for the quarter ended September 30,
1992, and incorporated herein by reference.
10-SSS Copy of Trust Agreement, dated as of July 1, 1992, between Premier
Auto Receivables Company and Chemical Bank Delaware, with respect
to Premier Auto Trust 1992-4. Filed as Exhibit 4-C to the Quarterly
Report on Form 10-Q of Premier Auto Trust 1992-4 for the quarter
ended September 30, 1992, and incorporated herein by reference.
10-TTT Copy of Receivables Purchase Agreement, dated as of August 18,
1992, between Chrysler Credit Ltd., Chrysler Financial Corporation
and Associated Assets Acquisition Inc. with respect to Canadian
Auto Receivables Securitization 1992-2. Filed as Exhibit 10-OOOOO
to the Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-UUU Copy of Indenture, dated as of September 1, 1992, between Premier
Auto Trust 1992-5 and Bankers Trust Company with respect to Premier
Auto Trust 1992-5. Filed as Exhibit 4-A to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1992-5 for the quarter ended
September 30, 1992, and incorporated herein by reference.
10-VVV Copy of a 4.55% Asset Backed Note with respect to Premier Auto
Trust 1992-5. Filed as Exhibit 4-B to the Quarterly Report on Form
10-Q of Premier Auto Trust 1992-5 for the quarter ended September
30, 1992, and incorporated herein by reference.
10-WWW Copy of Trust Agreement, dated as of September 1, 1992, between
Premier Auto Receivables Company and Manufacturers Hanover Bank
(Delaware) with respect to Premier Auto Trust 1992-5. Filed as
Exhibit 4-C to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1992-5 for the quarter ended September 30, 1992, and
incorporated herein by reference.
10-XXX Copy of Series 1992-2 Supplement to the Pooling and Servicing
Agreement, dated as of October 1, 1992, among U.S. Auto Receivables
Company, as Seller, Chrysler Credit Corporation, as Servicer, and
Manufacturers and Traders Trust Company, as Trustee, with respect
to CARCO Auto Loan Master Trust, Series 1992-2. Filed as Exhibit 3
to Form 8-A of CARCO Auto Loan Master Trust on October 30, 1992,
and incorporated herein by reference.
E-12
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-YYY Copy of Master Custodial and Servicing Agreement, dated as of
September 1, 1992 between Chrysler Credit Canada Ltd. and The Royal
Trust Company, as Custodian. Filed as Exhibit 10-TTTTT to the
Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-ZZZ Copy of Trust Indenture, dated as of September 1, 1992, among
Canadian Dealer Receivables Corporation and Montreal Trust Company
of Canada, as Trustee. Filed as Exhibit 10-UUUUU to the
Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-AAAA Copy of Servicing Agreement, dated as of October 20, 1992, between
Chrysler Leaserve, Inc. (a subsidiary of General Electric Capital
Auto Lease, Inc.) and Chrysler Credit Corporation, with respect to
the sale of Gold Key Leases. Filed as Exhibit 10-YYYYY to the
Registration Statement on Form S-2 of Chrysler Financial
Corporation (Registration Statement No. 33-51302) on November 24,
1992, and incorporated herein by reference.
10-BBBB Copy of Second Amendment dated as of August 24, 1992 to the Series
1991-3 Supplement dated as of June 30, 1991, among U.S. Auto
Receivables Company ("USA"), as seller (the "Seller"), Chrysler
Credit Corporation, as servicer (the "Servicer") and Manufacturers
and Traders Trust Company, as trustee (the "Trustee"), to the
Pooling and Servicing Agreement dated as of May 31, 1991, as
assigned by Chrysler Auto Receivables Company to USA on August 8,
1991, as amended by the First Amendment dated as of August 6, 1992,
among the Seller, the Servicer and the Trustee, with respect to
CARCO Auto Loan Master Trust. Filed as Exhibit 4-O to the Quarterly
Report on Form 10-Q of CARCO Auto Loan Master Trust for the quarter
ended September 30, 1992, and incorporated herein by reference.
10-CCCC Copy of Sale and Servicing Agreement, dated as of November 1, 1992,
among Premier Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Premier Auto Trust 1992-6, as
Purchaser, with respect to Premier Auto Trust 1992-6. Filed as
Exhibit 10-PPPPPP to the Annual Report of Chrysler Financial
Corporation on Form 10-K for the year ended December 31, 1992, and
incorporated herein by reference.
10-DDDD Copy of Trust Agreement, dated as of November 1, 1992, among ML
Asset Backed Corporation, Premier Auto Receivables Company and
Chemical Bank Delaware as Owner Trustee, with respect to Premier
Auto Trust 1992-6. Filed as Exhibit 10-QQQQQQ to the Annual Report
of Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1992, and incorporated herein by reference.
10-EEEE Copy of Sale and Servicing Agreement, dated as of January 1, 1993,
among Premier Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Premier Auto Trust 1993-1, as
Purchaser, with respect to Premier Auto Trust 1993-1. Filed as
Exhibit 10-RRRRRR to the Annual Report of Chrysler Financial
Corporation on Form 10-K for the year ended December 31, 1992, and
incorporated herein by reference.
E-13
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-FFFF Copy of Trust Agreement, dated as of January 1, 1993, among ML
Asset Backed Corporation, Premier Auto Receivables Company and
Chemical Bank Delaware, as Owner Trustee, with respect to Premier
Auto Trust 1993-1. Filed as Exhibit 10-SSSSSS to the Annual Report
of Chrysler Financial Corporation on Form 10-K for the year ended
December 31, 1992, and incorporated herein by reference.
10-GGGG Copy of Receivables Purchase Agreement, dated as of November 25,
1992, between Chrysler Credit Canada Ltd., Chrysler Financial
Corporation and Associated Assets Acquisitions Inc. with respect to
Canadian Auto Receivables Securitization 1992-3. Filed as Exhibit
10-TTTTTT to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1992, and incorporated
herein by reference.
10-HHHH Copy of Purchase Agreement, dated as of January 25, 1993, among
Chrysler Credit Canada Ltd., Auto 1 Limited Partnership and
Chrysler Financial Corporation, with respect to Auto 1 Trust. Filed
as Exhibit 10-UUUUUU to the Annual Report of Chrysler Financial
Corporation on Form 10-K for the year ended December 31, 1992, and
incorporated herein by reference.
10-IIII Copy of Master Lease Agreement, dated as of January 25, 1993, among
Chrysler Credit Canada Ltd., Chrysler Canada Ltd. and Auto 1
Limited Partnership, with respect to Auto 1 Trust. Filed as Exhibit
10-VVVVVV to the Annual Report of Chrysler Financial Corporation on
Form 10-K for the year ended December 31, 1992, and incorporated
herein by reference.
10-JJJJ Copy of Amended and Restated Trust Agreement, dated as of August 1,
1993, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1993-4. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1993-4 for the
quarter ended September 30, 1993, and incorporated herein by
reference.
10-KKKK Copy of Indenture, dated as of August 1, 1993, between Premier Auto
Trust 1993-4 and Bankers Trust Company, as Indenture Trustee, with
respect to Premier Auto Trust 1993-4. Filed as Exhibit 4.2 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1993-4 for the
quarter ended September 30, 1993, and incorporated herein by
reference.
10-LLLL Copy of Amended and Restated Trust Agreement, dated as of August 1,
1994, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1994-4. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1994-4 for the
quarter ended September 30, 1994, and incorporated herein by
reference.
10-MMMM Copy of Indenture, dated as of August 1, 1994, between Premier Auto
Trust 1994-4 and Bankers Trust Company, as Indenture Trustee. Filed
as Exhibit 4.2 to the Quarterly Report on Form 10-Q of Premier Auto
Trust 1994-4 for the quarter ended September 30, 1994, and
incorporated herein by reference.
E-14
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-NNNN Copy of Receivables Purchase Agreement, dated as of February 28,
1995, among Chrysler Financial Corporation, Premier Auto
Receivables Company and ABN AMRO Bank, N.V., with respect to the
sale of retail automotive receivables to Windmill Funding
Corporation. Filed as Exhibit 10-GGGG to the Quarterly Report on
Form 10-Q of Chrysler Financial Corporation for the quarter ended
March 31, 1995, and incorporated herein by reference.
10-OOOO Copy of Series 1994-1 Supplement, dated as of September 30, 1994,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1994-1. Filed as Exhibit 3 to the Registration Statement on
Form 8-A of CARCO Auto Loan Master Trust dated November 23, 1994,
and incorporated herein by reference.
10-PPPP Copy of Series 1994-2 Supplement, dated as of October 31, 1994,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust
1994-2. Filed as Exhibit 3 to the Registration Statement on Form
8-A of CARCO Auto Loan Master Trust dated December 22, 1994, and
incorporated herein by reference.
10-QQQQ Copy of Series 1994-3 Supplement, dated as of November 30, 1994,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1994-3. Filed as Exhibit 4-W to the Annual Report on Form
10-K of CARCO Auto Loan Master Trust for the year ended December
31, 1994, and incorporated herein by reference.
10-RRRR Copy of Series 1995-1 Supplement, dated as of December 31, 1994,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust,
Series 1995-1. Filed as Exhibit 3 to the Registration Statement
on Form 8-A of CARCO Auto Loan Master Trust dated January 19, 1995,
and incorporated herein by reference.
10-SSSS Copy of Series 1995-2 Supplement, dated as of February 28, 1995,
among U.S. Auto Receivables Company, as Seller, Chrysler Credit
Corporation, as Servicer, and Manufacturers and Traders Trust
Company, as Trustee, with respect to CARCO Auto Loan Master Trust
1995-2. Filed as Exhibit 3 to CARCO Auto Loan Master Trust's
Registration Statement on Form 8-A dated March 27, 1995,and
incorporated herein by reference.
10-TTTT Copy of Amended and Restated Trust Agreement, dated as of February
1, 1995, among Premier Auto Receivables Company, Chrysler Financial
Corporation and Chemical Bank Delaware, as Owner Trustee, with
respect to Premier Auto Trust 1995-1. Filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995
of Premier Auto Trust 1995-1, and incorporated herein by reference.
E-15
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
EXHIBIT INDEX
EXHIBIT NO.
10-UUUU Copy of Indenture, dated as of February 1, 1995, between Premier
Auto Trust 1995-1 and The Bank of New York, as Indenture Trustee,
with respect to Premier Auto Trust 1995-1. Filed as Exhibit 4.2 to
the Quarterly Report on Form 10-Q for the quarter ended March 31,
1995 of Premier Auto Trust 1995-1, and incorporated herein by
reference.
10-VVVV Copy of Sale and Servicing Agreement, dated as of February 1, 1995,
among Premier Auto Trust 1995-1, Chrysler Credit Corporation and
Chrysler Financial Corporation, with respect to Premier Auto Trust
1995-1. Filed as Exhibit 4.3 to the Quarterly Report on Form 10-Q
for the quarter ended March 31, 1995 of Premier Auto Trust 1995-1,
and incorporated herein by reference.
12-A Chrysler Financial Corporation and Subsidiaries Computations of
Ratios of Earnings to Fixed Charges.
12-B Chrysler Corporation Enterprise as a Whole Computations of Ratios
of Earnings to Fixed Charges and Preferred Stock Dividend
Requirements.
15-A Letter regarding unaudited interim financial information.
15-B Independent Accountants' Letter in lieu of Consent.
27 Financial Data Schedule.
E-16
Exhibit 10-G
CONFORMED COPY
============================================================================
$2,400,000,000
SHORT TERM REVOLVING CREDIT AGREEMENT
Dated as of May 1, 1995
CHRYSLER FINANCIAL CORPORATION and
CHRYSLER CREDIT CANADA LTD.,
as BORROWERS
ABN AMRO BANK, N.V.,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF COMMERCE,
THE CHASE MANHATTAN BANK, N.A., CREDIT SUISSE,
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONSBANK OF NORTH CAROLINA, N.A.,
SOCIETE GENERALE and THE TORONTO-DOMINION BANK,
as MANAGING AGENTS
ROYAL BANK OF CANADA,
as CANADIAN ADMINISTRATIVE AGENT
CHEMICAL BANK,
as ADMINISTRATIVE AGENT
============================================================================
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................... 1
1.1 Defined Terms........................................ 1
1.2 Other Definitional Provisions........................ 16
SECTION 2. THE U.S. COMMITMENTS................................ 16
2.1 The U.S. Commitments................................. 16
2.2 Procedure for Borrowing.............................. 17
2.3 Conversion and Continuation Options.................. 17
2.4 Minimum Amount of Eurodollar Tranches................ 17
2.5 Certain Matters Relating to Eurodollar Loans......... 18
SECTION 3. THE CANADIAN COMMITMENTS............................ 19
3.1 The Canadian Commitments............................. 19
3.2 Procedure for C$ R/C Loan Borrowing.................. 19
3.3 Bankers' Acceptances................................. 19
3.4 Conversion Option.................................... 22
3.5 Currency Fluctuations, etc........................... 23
SECTION 4. GENERAL PROVISIONS.................................. 23
4.1 Evidence of Debt..................................... 23
4.2 Repayment of Loans................................... 24
4.3 Interest Rate and Payment Dates...................... 24
4.4 Lending Procedures................................... 25
4.5 Facility Fees........................................ 25
4.6 Termination or Reduction of Commitments.............. 26
4.7 Optional Prepayments................................. 26
4.8 Pro Rata Treatment and Payments...................... 26
4.9 Computation of Interest and Fees..................... 27
4.10 Increased Costs..................................... 28
4.11 Changes in Capital Requirements..................... 28
4.12 Indemnity........................................... 30
4.13 Taxes............................................... 31
4.14 Use of Proceeds..................................... 32
4.15 Replacement of Banks................................ 32
SECTION 5. REPRESENTATIONS AND WARRANTIES...................... 33
5.1 Financial Condition.................................. 33
5.2 No Change............................................ 33
5.3 Corporate Existence.................................. 33
5.4 Corporate Authorization; No Violation................ 33
5.5 Government Authorization............................. 33
5.6 Federal Regulations.................................. 34
5.7 Enforceable Obligations.............................. 34
5.8 No Material Litigation............................... 34
5.9 Taxes................................................ 34
5.10 ERISA............................................... 34
5.11 Investment Company Act; Other Regulations........... 34
<PAGE>
Page
5.12 Existing Financial Covenants........................ 35
SECTION 6. CONDITIONS PRECEDENT................................ 35
6.1 Conditions to Effectiveness.......................... 35
6.2 Conditions to Each Loan.............................. 36
SECTION 7. AFFIRMATIVE COVENANTS............................... 36
7.1 Financial Statements, etc............................ 37
7.2 Maintenance of Existence............................. 38
7.3 Notices.............................................. 38
SECTION 8. NEGATIVE COVENANTS.................................. 38
8.1 Debt to Equity Ratio................................. 38
8.2 Limitation on Transactions with Affiliates........... 38
8.3 Limitation on Fundamental Change..................... 38
8.4 Limitation on Liens.................................. 39
8.5 Additional Covenants................................. 40
SECTION 9. EVENTS OF DEFAULT................................... 41
SECTION 10. THE AGENTS......................................... 43
10.1 Appointment......................................... 43
10.2 Delegation of Duties................................ 44
10.3 Exculpatory Provisions.............................. 44
10.4 Reliance by Agents and CASC......................... 44
10.5 Notice of Default................................... 44
10.6 Non-Reliance on Agents, Other Banks and CASC. ..... 45
10.7 Indemnification..................................... 45
10.8 Agents in their Individual Capacity................. 46
10.9 Successor Agents.................................... 46
10.10 The Managing Agents................................ 46
SECTION 11. GUARANTEE.......................................... 46
11.1 Guarantee........................................... 46
11.2 No Subrogation, Contribution, Reimbursement
or Indemnity........................................ 47
11.3 Amendments, etc. with respect to the CCCL
Obligations......................................... 47
11.4 Guarantee Absolute and Unconditional................ 47
11.5 Reinstatement....................................... 48
11.6 Payments............................................ 48
11.7 Judgments Relating to Guarantee..................... 49
11.8 Independent Obligations............................. 49
SECTION 12. MISCELLANEOUS...................................... 49
12.1 Amendments and Waivers.............................. 49
12.2 Notices............................................. 50
12.3 Clearing Accounts................................... 51
- ii -
<PAGE>
Page
12.4 No Waiver; Cumulative Remedies...................... 52
12.5 Survival of Representations and Warranties.......... 52
12.6 Payment of Expenses................................. 52
12.7 Successors and Assigns.............................. 53
12.8 Right of Set-off.................................... 55
12.9 Adjustments......................................... 55
12.10 New Banks; Commitment Increases; Commitment
Reallocations...................................... 55
12.11 Tax Forms.......................................... 56
12.12 Counterparts....................................... 57
12.13 Governing Law...................................... 57
12.14 Submission to Jurisdiction; Waivers................ 57
12.15 Integration........................................ 57
12.16 Judgments Relating to CCCL......................... 58
12.17 WAIVERS OF JURY TRIAL.............................. 59
SCHEDULES
SCHEDULE I Commitments
SCHEDULE II Existing Financial Covenants
EXHIBITS
EXHIBIT A Addendum
EXHIBIT B Closing Certificate
EXHIBIT C-1 Opinion of Simpson Thacher & Bartlett
EXHIBIT C-2 Opinion of General Counsel of CFC
EXHIBIT C-3 Opinion of Canadian Counsel to CCCL
EXHIBIT D-1 Assignment and Acceptance
EXHIBIT D-2 New Bank Supplement
EXHIBIT D-3 Commitment Increase Supplement
EXHIBIT D-4 Commitment Reallocation Supplement
EXHIBIT E Promissory Note
- iii -
<PAGE>
SHORT TERM REVOLVING CREDIT AGREEMENT dated as of May 1, 1995 among
CHRYSLER FINANCIAL CORPORATION, a Michigan corporation ("CFC"), CHRYSLER
CREDIT CANADA LTD. ("CCCL"), a Canadian corporation, the several commercial
banks from time to time parties to this Agreement (as more specifically
defined below, the "Banks"), ABN AMRO BANK, N.V., BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF COMMERCE, THE CHASE
MANHATTAN BANK, N.A., CREDIT SUISSE, THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, NATIONSBANK OF NORTH
CAROLINA, N.A., SOCIETE GENERALE and THE TORONTO-DOMINION BANK, as Managing
Agents (in such capacity, the "Managing Agents"), ROYAL BANK OF CANADA, a
Canadian chartered bank ("Royal"), as Canadian administrative agent for the C$
Banks (as defined below) hereunder, and CHEMICAL BANK, a New York banking
corporation ("Chemical"), as administrative agent for the Banks hereunder.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined in
the caption to this Agreement shall have the meanings set forth therein, and
the following terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acceptance Fee": the fee payable in C$ to each C$ Bank in respect
of Bankers' Acceptances computed in accordance with Section 3.3.
"Accumulated Funding Deficiency": any "accumulated funding
deficiency" as defined in Section 302 of ERISA.
"ACH": an Automated Clearing House.
"Addendum": an instrument, substantially in the form of Exhibit A,
by which a Bank becomes a party to this Agreement.
"Administrative Agent": Chemical Bank and its affiliates, in their
respective capacities as administrative agent for the Banks under this
Agreement and arranger of the Commitments, together with any of their
respective successors.
"Affected Bank": as defined in Section 2.5(b).
"Affiliate": with respect to any Person, any other Person that,
directly or indirectly, controls or is controlled by or is under common
control with such Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and
<PAGE>
2
policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Agents": the collective reference to the Administrative Agent and
the Canadian Administrative Agent.
"Aggregate Canadian Extensions of Credit": with respect to any C$
Bank, at any time, the aggregate principal amount of all C$ Loans (US$
Equivalent) made by such Bank then outstanding.
"Aggregate U.S. Extensions of Credit": with respect to any US$
Bank, at any time, the aggregate principal amount of all U.S. R/C Loans
made by such Bank then outstanding.
"Agreement": this Short Term Revolving Credit Agreement, as the
same may be amended, modified or supplemented from time to time.
"Applicable BA Discount Rate":
(a) with respect to any Schedule I C$ Bank, as applicable to a
Bankers' Acceptance being purchased by such Schedule I C$ Bank on any
day, the average (as determined by the Canadian Administrative Agent) of
the respective percentage discount rates (expressed to two decimal
places and rounded upward, if necessary, to the nearest 1/100th of 1%)
quoted to the Canadian Administrative Agent by each Schedule I C$
Reference Bank as the percentage discount rate at which such Schedule I
C$ Reference Bank would, in accordance with its normal practices, at or
about 10:00 A.M., Toronto time, on such day, be prepared to purchase
bankers' acceptances accepted by such Schedule I Reference C$ Bank
having a maturity date comparable to the maturity date of such Bankers'
Acceptance; and
(b) with respect to any Schedule II C$ Bank, as applicable to a
Bankers' Acceptance being purchased by such Schedule II C$ Bank on any
day, the average (as determined by the Canadian Administrative Agent) of
the respective percentage discount rates (expressed to two decimal
places and rounded upward, if necessary, to the nearest 1/100th of 1%)
quoted to the Canadian Administrative Agent by each Schedule II C$
Reference Bank as the percentage discount rate at which such Schedule II
C$ Reference Bank would, in accordance with its normal practices, at or
about 10:00 A.M., Toronto time, on such day, be prepared to purchase
bankers' acceptances accepted by such Schedule II Reference C$ Bank
having a maturity date comparable to the maturity date of such Bankers'
Acceptance.
"Applicable Margin": with respect to each Eurodollar Loan or
Banker's Acceptance at any date, the applicable percentage per annum set
forth below based upon the Status and U.S. Utilization or Canadian
Utilization, as applicable, on such date (provided that if the
Commitments have been terminated prior to such date, the U.S.
Utilization and Canadian Utilization for such date shall be deemed to be
greater than 50%):
<TABLE>
<CAPTION>
Level I Level II Level III Level IV Level V
U.S./Canadian Utilization Status Status Status Status Status
- ------------------------ ------- -------- --------- -------- ------
<S> <C> <C> <C> <C> <C>
Less than or equal to
50%: 0.2800% 0.2950% 0.3500% 0.4375% 0.5000%
</TABLE>
<PAGE>
3
<TABLE>
<S> <C> <C> <C> <C> <C>
Greater than 50%: 0.4050% 0.4200% 0.4750% 0.5625% 0.6250%
</TABLE>
"Assessment Rate": for any date the annual rate (rounded upwards,
if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that
will be employed in determining amounts payable by Chemical to the
Federal Deposit Insurance Corporation (or any successor) for insurance
by such Corporation (or any successor) of time deposits made in Dollars
at Chemical's domestic offices.
"Available Canadian Commitment": as to any C$ Bank, at a particular
time, an amount equal to the excess, if any, of (a) the amount of such
Bank's Canadian Commitment at such time over (b) the Aggregate Canadian
Extensions of Credit of such Bank at such time.
"Available U.S. Commitment": as to any US$ Bank, at a particular
time, an amount equal to the excess, if any, of (a) the amount of such
Bank's U.S. Commitment at such time over (b) the Aggregate U.S.
Extensions of Credit of such Bank at such time.
"BA Discount Proceeds": in respect of any Bankers' Acceptance to be
purchased by a C$ Bank on any day under Section 3.3, an amount (rounded
to the nearest whole Canadian cent, and with one-half of one Canadian
cent being rounded up) calculated on such day by dividing:
(A) the face amount of such Bankers' Acceptance; by
(B) the sum of one plus the product of:
(i) the Applicable BA Discount Rate (expressed as a decimal)
applicable to such Bankers' Acceptance; and
(ii) a fraction, the numerator of which is the number of days
remaining in the term of such Bankers' Acceptance and the
denominator of which is the number of days in the
calendar year in which the Bankers' Acceptance is issued,
being 365 or 366, as applicable;
with such product being rounded up or down to the fifth
decimal place and .000005 being rounded up.
"Bankers' Acceptance": a bill of exchange denominated in C$ drawn
by CCCL and accepted by a C$ Bank pursuant to Section 3.3.
"Banking Day": in respect of any city, any day on which commercial
banks are open for business (including dealings in foreign exchange and
foreign currency deposits) in that city.
"Bank Rate": at any date of determination, the rate determined by
the Bank of Canada at its weekly three-month Canadian Dollar Treasury
Bill auction.
"Banks": as defined in the caption to this Agreement; provided,
that each reference herein to any Bank shall be deemed to be a reference
to each US$ Bank and to each C$ Bank
<PAGE>
4
unless the context otherwise requires (in which case such reference
shall be deemed to be a reference only to each US$ Bank or to each C$
Bank, as applicable).
"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Effective Federal Funds Rate in effect on such
day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by
Chemical as its prime rate in effect at its principal office in New York
City; each change in the Prime Rate shall be effective on the date such
change is publicly announced; "Base CD Rate" shall mean the sum of (a)
the product of (i) the Three-Month Secondary CD Rate and (ii) Statutory
Reserves and (b) the Assessment Rate; and "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day)
by the Federal Reserve Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Federal Reserve Board, be published in Federal
Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported for such day or such
next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 A.M., New York
City time, on such day (or, if such day shall not be a Business Day, on
the next preceding Business Day) by the Administrative Agent from three
New York City negotiable certificate of deposit dealers of recognized
standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent
clearly demonstrable error) that it is unable to ascertain the Base CD
Rate or the Effective Federal Funds Rate or both for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the Base
Rate shall be determined without regard to clause (b) or (c), or both,
of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change
in the Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Effective Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Effective Federal Funds Rate, respectively.
"Base Rate Loans": U.S. R/C Loans at such time as they bear
interest at a rate based upon the Base Rate.
"Borrowing Date": any Business Day prior to the Termination Date
specified in a notice pursuant to Section 2.2, 3.2 or 3.3 as a date on
which a Facility Borrower requests Loans to be made hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by
law to close, except that, (a) when used in connection with a Eurodollar
Loan with respect to which the Eurodollar Rate is determined based upon
the Telerate screen in accordance with the definition of Eurodollar
Rate, "Business Day" shall mean any Business Day on which dealings in
foreign currencies and exchange between banks may be carried on in
London, England and New York, New York and (b) when used in connection
with a C$ Loan, "Business Day" shall mean a day on
<PAGE>
5
which banks are open for business in Toronto, Ontario, Canada but
excludes Saturday, Sunday and any other day which is a legal holiday in
Toronto, Ontario, Canada.
"C$ Bank": each Bank designated as a "C$ Bank" on Schedule I, as
such Schedule may be modified from time to time pursuant to Section 12.7
or 12.10.
"C$ Commitment Percentage": as to any C$ Bank at any time, the
percentage of the aggregate Canadian Commitments then constituted by
such Bank's Canadian Commitment.
"C$ Loans": the collective reference to C$ R/C Loans and Bankers'
Acceptances. For the purposes of this agreement, the principal amount of
any C$ Loan constituting a Bankers' Acceptance shall be deemed to be the
face amount of such Bankers' Acceptance.
"C$ Prime Loans": C$ Loans at such time as they bear interest at a
rate based upon the Canadian Prime Rate.
"C$ R/C Loans": as defined in Section 3.1.
"Canadian Administrative Agent": Royal, in its capacity as Canadian
administrative agent for the C$ Banks under this Agreement, together
with any of its successors.
"Canadian Calculation Date": the Business Day immediately preceding
the Effective Date and the last Business Day of each calendar month.
"Canadian Commitment": as to any C$ Bank, its obligation to make C$
R/C Loans and purchase Bankers' Acceptances to or from CCCL hereunder in
an aggregate principal amount (US$ Equivalent) at any one time
outstanding not to exceed the amount (expressed in Dollars) set forth
opposite such Bank's name on Schedule I, as such amount may be changed
from time to time as provided herein.
"Canadian Dollars" or "C$": lawful currency of Canada.
"Canadian Exchange Rate": on a particular date, the rate at which
C$ may be exchanged into Dollars, determined by reference to the Bank of
Canada noon rate as published on the Reuters Screen page BOFC. In the
event that such rate does not appear on such Reuters page, the "Canadian
Exchange Rate" shall be determined by reference to any other means (as
selected by the Canadian Administrative Agent) by which such rate is
quoted or published from time to time by the Bank of Canada; provided,
that if at the time of any such determination, for any reason, no such
exchange rate is being quoted or published, the Canadian Administrative
Agent may use any reasonable method as it deems applicable to determine
such rate, and such determination shall be conclusive absent manifest
error.
"Canadian Prime Rate": with respect to a C$ Prime Loan, on any day,
the greater of (a) the annual rate of interest announced from time to
time by Royal as its reference rate then in effect for determining
interest rates on C$ denominated commercial loans in Canada and (b) the
annual rate of interest equal to the sum of (i) the CDOR Rate and (ii)
0.75% per annum.
"Canadian Register": as defined in Section 12.7(c).
<PAGE>
6
"Canadian Reset Date" as defined in Section 3.5(a).
"Canadian Utilization": with respect to any Utilization Period, the
percentage equivalent of a fraction (a) the numerator of which is the
average daily principal amount of C$ Loans (US$ Equivalent) outstanding
during such Utilization Period and (b) the denominator of which is the
average daily amount of the aggregate Canadian Commitments of all C$
Banks during such Utilization Period.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"CASC": Chemical Bank Agency Services (and any successor).
"CCCL Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the C$ Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to CCCL, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
C$ Loans and all other obligations and liabilities of CCCL to any Agent
or to any Bank, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement or any other
document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees, charges and disbursements of counsel to any Agent or to any Bank
that are required to be paid by CCCL pursuant to this Agreement or
otherwise.
"CDOR Rate": on any day, the annual rate of interest which is the
rate based on an average 30 day rate applicable to C$ bankers'
acceptances appearing on the "Reuters Screen CDOR Page" (as defined in
the International Swap Dealer Association, Inc. definitions, as modified
and amended from time to time) as of 10:00 A.M., Toronto time, on such
day, or if such day is not a Business Day, then on the immediately
preceding Business Day; provided, however, if such rate does not appear
on the Reuters Screen CDOR Page as contemplated, then the CDOR Rate on
any day shall be calculated as the arithmetic mean of the 30 day rates
applicable to C$ bankers' acceptances quoted by the Schedule I C$
Reference Banks as of 10:00 A.M., Toronto time, on such day, or if such
day is not a Business Day, then on the immediately preceding Business
Day. If less than all of the Schedule I C$ Reference Banks quote the
aforementioned rate on the days and at the times described above, the
"CDOR Rate" shall be such other rate or rates as the Canadian
Administrative Agent and CCCL may agree.
"CFC Affiliate": any Person that, directly or indirectly, controls
or is controlled by or is under common control with CFC (including,
without limitation, Chrysler and its subsidiaries, but excluding any
Subsidiary). For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the
power, directly or indirectly, either to (a) vote 20% or more of the
securities (or other equity interests) of such Person having ordinary
voting power or (b) direct or cause the direction of the management and
policies of
<PAGE>
7
such Person, whether through the ownership of voting securities (or
other equity interests) or by contract or otherwise.
"Change of Control": any of the following events or circumstances:
(a) any Person or "group" (within the meaning of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended) shall either (i)
acquire beneficial ownership of more than 50% of any outstanding class
of common stock of Chrysler having ordinary voting power in the election
of directors of Chrysler or (ii) obtain the power (whether or not
exercised) to elect a majority of Chrysler's directors or (b) the Board
of Directors of Chrysler shall not consist of a majority of Continuing
Directors. As used in this definition, "Continuing Directors" shall mean
the directors of Chrysler on the Effective Date and each other director
of Chrysler, if such other director's nomination for election to the
Board of Directors of Chrysler is recommended by a majority of the then
Continuing Directors.
"Chartered Bank": a bank named on Schedule I or Schedule II to the
Bank Act (Canada).
"Chrysler": Chrysler Corporation, a Delaware corporation.
"Clearing Account": as to any US$ Bank, the bank account designated
in its Addendum, or such other bank account as such Bank shall designate
in writing to the Administrative Agent from time to time, provided that
such other bank account shall be maintained at the office of an ACH
member.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commercial Bank": (a) with respect to the U.S. Commitments and the
U.S. R/C Loans thereunder, any Person (i) licensed to engage in
commercial banking business and (ii) which on the date it becomes a Bank
(or purchases a participation) hereunder (x) is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes and (y) is entitled to an exemption
from, or is not subject to, United States backup withholding tax and (b)
with respect to the Canadian Commitments and the C$ Loans thereunder,
any Chartered Bank which (except in the case of participations) has a
Related US$ Bank.
"Commitment": with respect to any Bank, the sum of such Bank's U.S.
Commitment and Canadian Commitment.
"Commitment Percentage": as to any Bank at any time, the percentage
of the aggregate Commitments then constituted by such Bank's Commitment.
"Commitment Period": as to the Commitment of any Bank, the period
from and including the Effective Date (or, in the case of an assignee
that is not already a Bank and any New Bank, from the date that such
Person becomes party to this Agreement as provided in Section 12.7 or
12.10, as applicable) to but not including the Termination Date or such
earlier date as the Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with CFC within the meaning
of Section 4001 of ERISA or is part of a group which includes CFC and is
treated as a single employer under Section 414 of the Code.
<PAGE>
8
"Contractual Obligation": as to any Person, any enforceable
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by which it
or any of its property is bound.
"D&P": Duff & Phelps Credit Rating Company and its successors.
"Debt": at any date, the amount which would appear in accordance
with GAAP on a consolidated balance sheet of CFC and its Subsidiaries on
such date opposite the heading "debt" (or any similar item).
"Default": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, lapse of time, or both, or the
happening of any other condition, has been satisfied.
"Dollars" or "$": lawful currency of the United States of America.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"Effective Date": subject to satisfaction of the conditions
specified in Section 6.1, May 5, 1995.
"Effective Federal Funds Rate": for any day, the weighted average
of the rates on overnight Federal funds transactions between members of
the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average quotations for the day of such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Equity": at any date, the amount which would appear in accordance
with GAAP on a consolidated balance sheet of CFC and its Subsidiaries on
such date opposite the heading "total shareholders' investment" (or any
similar item).
"Eurodollar Loan": any U.S. Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate": in the case of any Eurodollar Loan, with respect
to each day during each Interest Period (other than any seven-day
Interest Period) pertaining to such Eurodollar Loan, the rate of
interest determined on the basis of the rate for deposits in Dollars for
a period equal to such Interest Period commencing on the first day of
such Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period, provided, that in the event that such rate does
not appear on Page 3750 of the Telerate Service (or otherwise on such
service), the "Eurodollar Rate" shall be determined by reference to such
other publicly available service for displaying eurodollar rates as may
be agreed upon by the Administrative Agent and CFC. In the absence of
such agreement, and in the case of any seven-day Interest Period
pertaining to such Eurodollar Loan, the "Eurodollar Rate" shall instead
be the rate per annum equal to the
<PAGE>
9
average (rounded upward, if necessary, to the nearest 1/100th of 1%) of
the respective rates notified to the Administrative Agent by each of the
Eurodollar Reference Banks as the rate at which such Reference Bank is
offered Dollar deposits at or about 10:00 A.M., New York City time, two
Business Days prior to the beginning of the relevant Interest Period, in
the interbank eurodollar market where the eurodollar and foreign
currency and exchange operations in respect of its Eurodollar Loans are
then being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during
such Interest Period.
"Eurodollar Reference Banks": Chemical, Royal and Swiss Bank
Corporation; provided, that, for the purposes of determining the
Eurodollar Rate with respect to any seven-day Interest Period, Chemical
shall be the sole Eurodollar Reference Bank.
"Eurodollar Tranche": the collective reference to Eurodollar Loans
having the same Interest Period, whether or not originally made on the
same day.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or the happening of any other condition, has been
satisfied.
"Excess U.S. Utilization Period": any Utilization Period with
respect to which the U.S. Utilization exceeds 50%.
"Existing Agreements": the collective reference to (a) the
Revolving Credit Agreement dated as of May 23, 1994 among CFC, the banks
parties thereto and Chemical, as Agent, (b) the Revolving Credit
Agreement dated as of May 23, 1994 among CCCL, the banks parties thereto
and Royal, as Agent, (c) the Short Term Receivables Purchase Agreement
dated as of May 23, 1994 among CFC, certain of its Subsidiaries and
Chemical, as Agent and Administrative Agent, (d) the Long Term
Receivables Purchase Agreement dated as of May 23, 1994 among CFC,
certain of its Subsidiaries and Chemical, as Agent and Administrative
Agent, (e) the Short Term Receivables Purchase Agreement dated as of May
23, 1994 among CCCL, certain of its Subsidiaries and Royal, as Agent,
and (f) the Long Term Receivables Purchase Agreement dated as of May 23,
1994 among CCCL, certain of its Subsidiaries and Royal, as Agent.
"Facility Borrowers": the collective reference to CFC and CCCL.
"Facility Fee": as defined in Section 4.5.
"Facility Fee Rate": for any day, the rate per annum set forth
below opposite the Status in effect on such day:
<PAGE>
10
<TABLE>
<CAPTION>
Facility Fee
Status Rate
------ ------------
<S> <C>
Level I Status 0.0700%
Level II Status 0.0800%
Level III Status 0.1000%
Level IV Status 0.1875%
Level V Status 0.3750%
</TABLE>
"Federal Reserve Board": the Board of Governors of the Federal
Reserve System of the United States.
"Final Date": as defined in Section 4.5.
"Finance Business": (a) the small loan, personal finance, consumer
finance or installment credit business (including the business of making
collateral loans secured by credit obligations or personal property),
(b) the sales finance business and the business of purchasing and
selling notes and accounts receivable (whether or not repayable in
installments) and interests therein, (c) the commercial financing and
factoring business as generally conducted, including the leasing of
tangible personal property, and (d) any business (including, without
limitation, securitization and other receivables-based transactions)
related to or conducted in connection with any business of the character
referred to in the foregoing clauses (a), (b) and (c) other than
insurance underwriting.
"Finance-Related Insurance Business": the business of (a) insuring
articles and merchandise the sale or leasing of which is financed in the
ordinary course of the Finance Business, (b) insuring the lives of
individuals who are liable for the payment of the amounts owing on such
sales or leases and writing accident and health insurance on such
individuals, (c) automobile dealership property, liability, workers
compensation and related insurance, (d) motor vehicle physical damage
and liability insurance, and such other insurance business that is not
described in clause (a), (b), (c) or (d) above to the extent that such
insurance business does not produce at any time aggregate premiums
written (net of reinsurance ceded) by all Subsidiaries in an amount
greater than 50% of the aggregate amount of all premiums written (net of
reinsurance ceded) at such time in all of the insurance business of such
Subsidiaries.
"Finance Subsidiary": any Domestic Subsidiary that is engaged
primarily in the Finance Business.
"Fitch": Fitch Investors Service, Inc. and its successors.
"Foreign Subsidiary": any Subsidiary that (a) is organized under
the laws of any jurisdiction outside the United States of America,
Puerto Rico and Canada, or (b) conducts the major portion of its
business outside the United States of America, Puerto Rico and Canada.
<PAGE>
11
"GAAP": generally accepted accounting principles in the United
States of America (and, to the extent applicable, Canada) in effect from
time to time, except that for the purposes of determining compliance
with the covenants set forth in Section 8, "GAAP" shall mean generally
accepted accounting principles in the United States of America (and, to
the extent applicable, Canada) in effect on December 31, 1994 applied
consistently with those used in compiling the financial statements
included in the 1994 Annual Report.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Indebtedness": as applied to any Person at any date, (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services which would appear on a
consolidated balance sheet of such Person (or, in the case of CFC and
its Subsidiaries, CFC) prepared in accordance with GAAP, (b) obligations
of such Person under leases which appear as capital leases on a
consolidated balance sheet of such Person prepared in accordance with
GAAP and (c) any withdrawal obligation of such Person or any Commonly
Controlled Entity thereof to a Multiemployer Plan.
"Interest Period": with respect to any Eurodollar Tranche:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Tranche and ending seven days or one, two, three or six
months thereafter, as selected by CFC in its notice of borrowing or
notice of conversion, as the case may be, given with respect
thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar
Tranche and ending seven days or one, two, three or six months
thereafter, as selected by CFC by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto
(or, if no such period is specified, ending one month thereafter);
provided that, the foregoing provisions are subject to the following:
(A) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(B) no Interest Period may be selected by CFC if such Interest
Period would end after the Maturity Date; and
(C) any Interest Period of at least one month's duration that
begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the relevant calendar month.
<PAGE>
12
"Level": any of Level I, Level II, Level III, Level IV or Level V.
"Level I": any of the following long-term senior unsecured debt
ratings: A+ or better by S&P, A1 or better by Moody's, A+ or better by
D&P or A+ or better by Fitch.
"Level II": any of the following long-term senior unsecured debt
ratings: A or A- by S&P, A2 or A3 by Moody's, A or A- by D&P or A or
A- by Fitch.
"Level III": any of the following long-term senior unsecured debt
ratings: BBB+ or BBB by S&P, Baa1 or Baa2 by Moody's, BBB+ or BBB by D&P
or BBB+ or BBB by Fitch.
"Level IV": any of the following long-term senior unsecured debt
ratings: BBB- by S&P, Baa3 by Moody's, BBB- by D&P or BBB- by Fitch.
"Level V": any of the following long-term senior unsecured debt
ratings: BB+ or lower (or unrated) by S&P, Ba1 or lower (or unrated) by
Moody's, BB+ or lower (or unrated) by D&P or BB+ or lower (or unrated)
by Fitch.
"Lien": with respect to any property of any Person, any mortgage,
pledge, hypothecation, encumbrance, lien (statutory or other), charge or
other security interest of any kind in or with respect to such property
(including, without limitation, any conditional sale or other title
retention agreement, and any financing lease under which such Person is
lessee having substantially the same economic effects as any of the
foregoing).
"Loans": the collective reference to the U.S. R/C Loans and the C$
Loans.
"Local Time": (a) in the case of matters relating to U.S. R/C
Loans, New York City time, and (b) in the case of matters relating to C$
Loans, Toronto time.
"Long Term Revolving Credit Agreement": (a) the Long Term Revolving
Credit Agreement, dated as of May 1, 1995, among CFC, CCCL, the
financial institutions from time to time parties thereto, the Managing
Agents parties thereto, Royal Bank of Canada, as Canadian administrative
agent, and Chemical Bank, as administrative agent, as amended,
supplemented, or otherwise modified from time to time, or (b) if such
Revolving Credit Agreement is refinanced, refunded or otherwise replaced
by another bank revolving credit agreement, such agreement, as amended,
supplemented or otherwise modified from time to time.
"Material Indebtedness": any item or related items of Indebtedness
(or, in the case of any revolving credit facility, any commitments)
having an aggregate principal amount of at least $100,000,000 (or the
equivalent thereof in any other currency).
"Maturity Date": the date which is the second anniversary of the
Termination Date.
"Maximum Canadian Commitment Amount": with respect to each C$ Bank,
the amount specified opposite such Bank's name on Schedule I in the
column captioned "Maximum Canadian Commitment Amount".
"Moody's": Moody's Investors Service, Inc. and its successors.
<PAGE>
13
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New Bank": as defined in Section 12.10(a).
"1994 Annual Report": CFC's annual report to stockholders for the
fiscal year ended December 31, 1994.
"Other Taxes": as defined in Section 4.13(a).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor
corporation.
"Person": an individual, a partnership, a corporation (including a
business trust), a joint stock company, a trust, an unincorporated
association, a joint venture or other entity or a government or any
agency or political subdivision thereof.
"Plan": any pension plan which is covered by Title IV of ERISA and
in respect of which CFC or a Commonly Controlled Entity is an "employer"
as defined in Section 3(5) of ERISA.
"Prohibited Transaction": any "prohibited transaction" as defined
in Section 406 of ERISA or Section 4975 of the Code.
"Rating Agencies": the collective reference to D&P, Fitch, Moody's
and S&P.
"Real Estate Business": the acquisition, development, leasing,
financing, management, maintenance and disposition of real property,
including, without limitation, automotive dealership facilities and
dealership site control arrangements.
"Reference Banks": the collective reference to the Eurodollar
Reference Banks, the Schedule I C$ Reference Banks and the Schedule II
C$ Reference Banks.
"Registers": the collective reference to the U.S. Register and the
Canadian Register.
"Related C$ Bank": as defined in the definition of "US$ Bank
Combined Commitment".
"Related US$ Bank": as defined in the definition of "US$ Bank
Combined Commitment".
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder.
"Required Banks": at any date, Banks having at least 51% of the
aggregate amount of the Commitments at such date or, if the Commitments
have been terminated or for the purposes of determining whether to
accelerate the Loans pursuant to Section 9, the holders of at least 51%
of the outstanding principal amount of the Loans (US$ Equivalent).
<PAGE>
14
"Required Canadian Banks": at any date, C$ Banks having at least
51% of the aggregate amount of the Canadian Commitments at such date.
"Required U.S. Banks": at any date, US$ Banks having at least 51%
of the aggregate amount of the U.S. Commitments at such date.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its property is
subject.
"Responsible Officer": at any particular time, the Chairman of the
Board of Directors, the President, the chief financial officer, the Vice
President-Corporate Finance and Development, the Treasurer or the
Controller of CFC or CCCL, as the case may be.
"S&P": Standard & Poor's Ratings Group, and its successors.
"Schedule I C$ Bank": any C$ Bank named on Schedule I to the Bank
Act (Canada).
"Schedule I Reference C$ Banks": the collective reference to Royal,
Canadian Imperial Bank of Commerce and The Bank of Nova Scotia.
"Schedule II C$ Bank": any C$ Bank named on Schedule II to the Bank
Act (Canada).
"Schedule II Reference C$ Banks": the collective reference to
Chemical Bank of Canada, Credit Suisse Canada, Banque Nationale de Paris
(Canada) and The Dai-Ichi Kangyo Bank (Canada).
"Significant Subsidiary": at the time of any determination thereof,
(a) CCCL, (b) any other Finance Subsidiary and (c) any other Subsidiary
of CFC the assets of which constitute at least 5% of the consolidated
assets of CFC and its Subsidiaries as stated on the consolidated
financial statements of CFC and its Subsidiaries for the most recently
ended fiscal quarter of CFC, provided, that the term "Significant
Subsidiary" shall not include any Special Purpose Subsidiary.
"Single Employer Plan": any Plan which is not a Multiemployer Plan.
"Special Purpose Subsidiary": any Subsidiary created for the sole
purpose of purchasing assets from CFC or any Finance Subsidiary with the
intention and for the purpose of using such assets in a securitization
transaction.
"Status": the existence of Level I Status, Level II Status, Level
III Status, Level IV Status or Level V Status, as the case may be. For
the purposes of this definition, "Status" will be set at the lowest
Level assigned to CFC by any Rating Agency, unless only one Rating
Agency has assigned such Level to CFC, in which case CFC's Status will
be set at the second lowest Level assigned to CFC by any Rating Agency.
<PAGE>
15
"Statutory Reserves": a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum applicable reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Federal Reserve
Board and any other banking authority to which Chemical is subject with
respect to the Base CD Rate (as such term is used in the definition of
"Base Rate"), for new negotiable nonpersonal time deposits in Dollars of
over $100,000 with maturities approximately equal to three months.
Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary": any corporation of which CFC or one or more
Subsidiaries or CFC and one or more Subsidiaries shall at the time own
shares of any class or classes (however designated) having voting power
for the election of at least a majority of the members of the board of
directors (or other governing body) of such corporation.
"Taxes": as defined in Section 4.13(a).
"Termination Date": the date which is 364 days after the Effective
Date, or, if such day is not a Business Day, the next preceding Business
Day.
"Type": as to any U.S. R/C Loan, its nature as a Base Rate Loan or
a Eurodollar Loan.
"US$ Bank": each Bank designated as a "US$ Bank" on Schedule I, as
such Schedule may be modified from time to time pursuant to Section 12.7
or 12.10.
"US$ Bank Combined Commitment": as to any US$ Bank, the sum of (a)
such Bank's U.S. Commitment and (b) if such Bank has a Related C$ Bank,
such Related C$ Bank's Canadian Commitment; provided, that in the event
that Loans shall be outstanding after the Commitments shall have been
terminated, the "US$ Bank Combined Commitment" of each US$ Bank, on any
day, shall be deemed to equal the aggregate principal amount of the
Loans (US$ Equivalent) made by such Bank (or, if applicable, such Bank's
Related C$ Bank), outstanding on such day. For the purposes of this
Agreement, (i) "Related C$ Bank" means, with respect to any US$ Bank, as
applicable, either (x) such Bank in its capacity as a C$ Bank or (y) any
subsidiary, affiliate, branch or agency of such Bank which is a C$ Bank
and (ii) "Related US$ Bank" means, with respect to any C$ Bank, as
applicable, either (x) such Bank in its capacity as a US$ Bank or (y)
any subsidiary, affiliate, branch or agency of such Bank which is a US$
Bank.
"US$ Equivalent": on any date of determination, with respect to any
amount in Canadian Dollars, the equivalent in Dollars of such amount,
determined by the relevant Agent using the Canadian Exchange Rate then
in effect with respect thereto as determined pursuant to Section 3.5.
"U.S. Commitment": as to any US$ Bank, its obligation to make U.S.
R/C Loans to CFC hereunder in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Bank's
name on Schedule I, as such amount may be changed from time to time as
provided herein.
<PAGE>
16
"U.S. Commitment Percentage": as to any US$ Bank at any time, the
percentage of the aggregate U.S. Commitments then constituted by such
Bank's U.S. Commitment.
"U.S. R/C Loans": as defined in Section 2.1(a).
"U.S. Register": as defined in Section 12.7(c).
"U.S. Utilization": for any Utilization Period, with respect to the
U.S. Commitments, the percentage equivalent of a fraction (a) the
numerator of which is the average daily principal amount of U.S. R/C
Loans outstanding during such Utilization Period and (b) the denominator
of which is the average daily amount of the aggregate U.S. Commitments
of all US$ Banks during such Utilization Period.
"Utilization Period": (a) each fiscal quarter of CFC and (b) any
portion of a fiscal quarter of CFC ending on the Final Date.
1.2 Other Definitional Provisions. (a) Unless otherwise specified,
all terms defined in this Agreement shall have the defined meanings when used
in any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to CFC and its
Subsidiaries not defined in Section 1.1, and accounting terms partly defined
in Section 1.1 to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
schedule and exhibit references are to this Agreement unless otherwise
specified.
SECTION 2. THE U.S. COMMITMENTS
2.1 The U.S. Commitments. (a) Subject to the terms and conditions
hereof, each US$ Bank severally agrees to make revolving credit loans ("U.S.
R/C Loans") to CFC from time to time during the Commitment Period. During the
Commitment Period, CFC may use the U.S. Commitment of each US$ Bank by
borrowing, prepaying or repaying the U.S. R/C Loans of such Bank, in whole or
in part, and reborrowing, all in accordance with the terms and conditions
hereof; provided that no U.S. R/C Loans may be made on or after the
Termination Date (it being understood that continuations and conversions of
outstanding U.S. R/C Loans shall be permitted on and after the Termination
Date in accordance with Section 2.3). Notwithstanding anything to the contrary
contained in this Agreement, in no event may U.S. R/C Loans be borrowed under
this Section 2.1 if, after giving effect thereto and the application of the
proceeds thereof, the aggregate principal amount of U.S. R/C Loans made by any
US$ Bank then outstanding would exceed such Bank's U.S. Commitment.
(b) U.S. R/C Loans may be Base Rate Loans or Eurodollar Loans, as
determined by CFC and notified to the Administrative Agent in accordance with
Section 2.2.
<PAGE>
17
2.2 Procedure for Borrowing. CFC may borrow under Section 2.1
during the Commitment Period on any Business Day, provided that CFC shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, and (ii) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans) specifying (A) the amount to be borrowed, (B) the
requested Borrowing Date, (C) the Type(s) of U.S. R/C Loans to be borrowed,
and (D) the length of the Interest Period for any Eurodollar Loan. Upon
receipt of such notice, the Administrative Agent shall promptly notify each
US$ Bank thereof. Not later than 2:00 P.M., New York City time, on the
Borrowing Date specified in such notice, each US$ Bank shall (subject to
Section 12.3(b)) deposit in its Clearing Account an amount in immediately
available funds equal to the amount of the U.S. R/C Loan to be made by such
Bank pursuant to Section 2.1. The Administrative Agent shall, pursuant to
Section 12.3(a), cause such amount to be withdrawn from each such Clearing
Account and shall make the aggregate amount so withdrawn available to CFC by
depositing the proceeds thereof in the account of CFC with the Administrative
Agent on the date such Loans are made for transmittal by the Administrative
Agent upon CFC's request. Each borrowing pursuant to Section 2.1 shall be in
an aggregate principal amount of the lesser of (i) $50,000,000 or an integral
multiple of $1,000,000 in excess thereof or (ii) the then aggregate Available
U.S. Commitments.
2.3 Conversion and Continuation Options. (a) CFC may elect from
time to time to convert Eurodollar Loans to Base Rate Loans, by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only
be made on the last day of an Interest Period with respect thereto. CFC may
elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each US$ Bank thereof. All or any part of
outstanding Eurodollar Loans and Base Rate Loans may be converted as provided
herein, provided that (i) no Base Rate Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required U.S. Banks have determined in its or
their sole discretion that such conversion is not appropriate and (ii) no Base
Rate Loan may be converted into a Eurodollar Loan after the date that is seven
days prior to the Maturity Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by CFC
giving irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Required U.S. Banks have determined in its or their sole discretion that
such continuation is not appropriate or (ii) after the date that is seven days
prior to the Maturity Date and provided, further, that if CFC shall fail to
give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to Base Rate Loans on the last day of such
then expiring Interest Period. Upon receipt of any notice given by CFC
pursuant to this Section 2.3(b), the Administrative Agent shall promptly
notify each US$ Bank thereof.
2.4 Minimum Amount of Eurodollar Tranches. Notwithstanding anything
to the contrary in this Agreement, all borrowings, payments, prepayments,
continuations and conversions of U.S. R/C Loans shall be in such amounts and
be made pursuant to such elections so that, after giving
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18
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising any Eurodollar Tranche shall not be less than $50,000,000.
2.5 Certain Matters Relating to Eurodollar Loans. (a) In the event
that (i) the Administrative Agent determines (which determination shall be
conclusive and binding upon CFC) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate in respect of any Eurodollar Loans, or (ii) the Required
U.S. Banks determine (which determination shall be conclusive and binding upon
CFC) and shall notify the Administrative Agent that the rates of interest
referred to in the definition of "Eurodollar Rate" as the basis upon which the
rate of interest for Eurodollar Loans is to be determined do not adequately
cover the cost to the US$ Banks of making or maintaining Eurodollar Loans, in
each case with respect to any proposed U.S. R/C Loan that CFC has requested be
made as a Eurodollar Loan, the Administrative Agent shall forthwith give
facsimile transmission or other written notice of such determination to CFC
and the US$ Banks at least one Business Day prior to the requested Borrowing
Date for such Eurodollar Loan. If such notice is given, any requested
borrowing of a Eurodollar Loan shall be made as a Base Rate Loan. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made.
(b) Upon notice from any Affected Bank (as hereinafter defined),
CFC shall pay to the Administrative Agent for the account of such Affected
Bank an additional amount for each Eurodollar Loan of such Affected Bank,
payable on the last day of the Interest Period with respect thereto, equal to
P X [[R / (1.00 - r)] - R] X [T / 360]
Where P = the principal amount of such Eurodollar Loan of such Bank;
R = the Eurodollar Rate (expressed as a decimal) for such Interest
Period;
T = the number of days in such Interest Period during which such Bank
was an "Affected Bank"; and
r = the aggregate of rates (expressed as a decimal) of reserve
requirements current on the date two Business Days prior to the
beginning of such Interest Period (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any
regulations of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto, as now and from
time to time hereafter in effect, dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Federal Reserve
Board) maintained by a member bank of the Federal Reserve System.
The term "Affected Bank" shall mean any US$ Bank party to this
Agreement that is (i) organized under the laws of the United States or any
State thereof or (ii) a bank organized under laws other than those of the
United States of America or a State thereof that is funding its Eurodollar
Loans through a branch or agency located in the United States of America. Each
US$ Bank agrees to notify the Administrative Agent (A) by appropriate
notification on its Addendum in the case of each original US$ Bank party
hereto and (B) in the case of each New Bank, and each assignee pursuant to
Section 12.7(a) that is not already a US$ Bank, upon its becoming a party
hereto as a US$ Bank, whether or
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19
not it is an Affected Bank, and of any subsequent change of status, disclosing
the effective date of such change.
(c) Upon the occurrence of any of the events specified in Section
2.5(a), each US$ Bank whose Eurodollar Loans are affected by any such event
agrees that it will transfer its Eurodollar Loans affected by any such event
to another branch office (or, if such Bank so elects, to an affiliate) of such
Bank, provided that such transfer shall be made only if such Bank shall have
determined in good faith (which determination shall, absent manifest error, be
final, conclusive and binding upon all parties) that, (i) on the basis of
existing circumstances, such transfer will avoid such events and will not
result in any additional costs, liabilities or expenses to such Bank or to CFC
and (ii) such transfer is otherwise consistent with the interests of such
Bank.
SECTION 3. THE CANADIAN COMMITMENTS
3.1 The Canadian Commitments. Subject to the terms and conditions
hereof, each C$ Bank severally agrees to make revolving credit loans ("C$ R/C
Loans") (which shall be C$ Prime Loans) to, and to accept Bankers' Acceptances
from, CCCL from time to time during the Commitment Period. During the
Commitment Period, CCCL may use the Canadian Commitment of each C$ Bank by
borrowing, prepaying or repaying the C$ R/C Loans or Bankers' Acceptances of
such Bank, in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof; provided that no C$ R/C Loans or Bankers'
Acceptances may be made or accepted on or after the Termination Date (it being
understood that continuations and conversions of outstanding C$ R/C Loans and
Bankers' Acceptances shall be permitted on and after the Termination Date in
accordance with Section 3.4). Notwithstanding anything to the contrary
contained in this Agreement, in no event may C$ R/C Loans or Bankers'
Acceptances be borrowed or issued under this Section 3.1 if, after giving
effect thereto and the application of the proceeds thereof, the Aggregate
Canadian Extensions of Credit of any C$ Bank then outstanding would exceed
such C$ Bank's Canadian Commitment.
3.2 Procedure for C$ R/C Loan Borrowing. CCCL may borrow C$ R/C
Loans during the Commitment Period on any Business Day, provided that CCCL
shall give the Canadian Administrative Agent irrevocable notice (which notice
must be received by the Canadian Administrative Agent prior to 12:00 noon,
Toronto time, one Business Day prior to the requested Borrowing Date,
specifying (a) the amount to be borrowed and (b) the requested Borrowing Date.
Upon receipt of such notice, the Canadian Administrative Agent shall promptly
notify each C$ Bank thereof. Not later than 2:00 P.M., Toronto time, on the
Borrowing Date specified in such notice, each C$ Bank shall make the amount of
its share of such borrowing available to the Canadian Administrative Agent for
the account of CCCL at the office of the Canadian Administrative Agent
specified in Section 12.2 and in funds immediately available to the Canadian
Administrative Agent. Each borrowing pursuant to this Section 3.2 shall be in
an aggregate principal amount of the lesser of (i) C$5,000,000 or an integral
multiple of C$100,000 in excess thereof or (ii) the amount in C$ which has a
US$ Equivalent equal to the then aggregate Available Canadian Commitments.
3.3 Bankers' Acceptances. (a) CCCL may issue Bankers' Acceptances
denominated in C$, for purchase by the C$ Banks, each in accordance with the
provisions of this Section 3.3.
(b) Procedures.
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20
(i) Notice. CCCL shall notify the Canadian Administrative Agent by
irrevocable written notice by 10:00 A.M., Toronto time, one Business Day
prior to the Borrowing Date in respect of any borrowing by way of
Bankers' Acceptances.
(ii) Minimum Borrowing Amount. Each borrowing by way of Bankers'
Acceptances shall be in a minimum aggregate face amount of C$10,000,000.
(iii) Face Amounts. The face amount of each Bankers' Acceptance
shall be C$100,000 or any integral multiple thereof.
(iv) Term. Bankers' Acceptances shall be issued and shall mature on
a Business Day. Each Bankers' Acceptance shall have a term of at least
30 days and not more than 365 days excluding days of grace and shall
mature on or before the Maturity Date and shall be in form and substance
reasonably satisfactory to each C$ Bank. Notwithstanding the foregoing
sentence, Bankers' Acceptances may from time to time be issued for a
term of seven days if each C$ Bank agrees at such time to accept
Bankers' Acceptances with such term in the amount determined by the
Canadian Administrative Agent in respect of such Bank in accordance with
Section 3.3(b)(vii).
(v) Bankers' Acceptances in Blank. To facilitate the acceptance of
Bankers' Acceptances under this Agreement, CCCL shall, upon execution of
this Agreement and from time to time as required, provide to the
Canadian Administrative Agent drafts, in form satisfactory to the
Canadian Administrative Agent, duly executed and endorsed in blank by
CCCL in quantities sufficient for each C$ Bank to fulfill its
obligations hereunder. Each C$ Bank is hereby authorized to issue such
Bankers' Acceptances endorsed in blank in such face amounts as may be
determined by such Bank provided that the aggregate amount thereof is
equal to the aggregate amount of Bankers' Acceptances required to be
accepted by such Bank. No C$ Bank shall be responsible or liable for its
failure to accept a Bankers' Acceptance if the cause of such failure is,
in whole or in part, due to the failure of CCCL to provide duly executed
and endorsed drafts to the Canadian Administrative Agent on a timely
basis nor shall any C$ Bank be liable for any damage, loss or other
claim arising by reason of any loss or improper use of any such
instrument except loss or improper use arising by reason of the gross
negligence or willful misconduct of such Bank, its officers, employees,
agents or representatives. Each C$ Bank shall maintain a record with
respect to Bankers' Acceptances (i) received by it from the Canadian
Administrative Agent in blank hereunder, (ii) voided by it for any
reason, (iii) accepted by it hereunder, (iv) purchased by it hereunder
and (v) cancelled at their respective maturities. Each C$ Bank further
agrees to retain such records in the manner and for the statutory
periods provided in the various Canadian provincial or federal statutes
and regulations which apply to such Bank.
(vi) Execution of Bankers' Acceptances. Drafts of CCCL to be
accepted as Bankers' Acceptances hereunder shall be duly executed on
behalf of CCCL. Notwithstanding that any person whose signature appears
on any Bankers' Acceptance as a signatory for CCCL may no longer be an
authorized signatory for CCCL at the date of issuance of a Bankers'
Acceptance, such signature shall nevertheless be valid and sufficient
for all purposes as if such authority had remained in force at the time
of such issuance and any such Bankers' Acceptance so signed shall be
binding on CCCL.
(vii) Issuance of Bankers' Acceptances. Promptly following receipt
of a notice of borrowing by way of Bankers' Acceptances, the Canadian
Administrative Agent shall so
<PAGE>
21
advise the C$ Banks and shall advise each C$ Bank of the face amount of
each Bankers' Acceptance to be accepted by it and the term thereof. The
aggregate face amount of Bankers' Acceptances to be accepted by a C$
Bank shall be determined by the Canadian Administrative Agent by
reference to the respective Canadian Commitments of the C$ Banks, except
that, if the face amount of a Bankers' Acceptance, which would otherwise
be accepted by a C$ Bank, would not be C$100,000 or an integral multiple
thereof, such face amount shall be increased or reduced by the Canadian
Administrative Agent in its sole and unfettered discretion to the
nearest integral multiple of C$100,000.
(viii) Acceptance of Bankers' Acceptances. Each Bankers' Acceptance
to be accepted by a C$ Bank shall be accepted at such Bank's office
referred to in its Addendum.
(ix) Purchase of Bankers' Acceptances. CCCL may require any C$ Bank
to purchase promptly, and in any event no later than two Business Days
following written notice by CCCL to the Canadian Administrative Agent,
from CCCL, at the Applicable BA Discount Rate, any Bankers' Acceptance
accepted by it and provide to the Canadian Administrative Agent the BA
Discount Proceeds for the account of CCCL. The Acceptance Fee payable by
CCCL to such Bank under Section 3.3(d) in respect of each Bankers'
Acceptance accepted and purchased by such Bank shall be set off against
the BA Discount Proceeds payable by such Bank under this Section
3.3(b)(ix).
(x) Sale of Bankers' Acceptances. Each C$ Bank may at any time and
from time to time hold, sell, rediscount or otherwise dispose of any or
all Bankers' Acceptances accepted and purchased by it.
(xi) Waiver of Presentment and Other Conditions. CCCL waives
presentment for payment and any other defense to payment of any amounts
due to a C$ Bank in respect of a Bankers' Acceptance accepted by it
pursuant to this Agreement which might exist solely by reason of such
Bankers' Acceptance being held, at the maturity thereof, by such Bank in
its own right and CCCL agrees not to claim any days of grace if such
Bank as holder sues CCCL on the Bankers' Acceptances for payment of the
amount payable by CCCL thereunder.
(c) With respect to each Bankers' Acceptance, CCCL shall give
irrevocable telephone or written notice (or such other method of notification
as may be agreed upon between the Canadian Administrative Agent and CCCL) to
the Canadian Administrative Agent at or before 2:00 P.M., Toronto time, two
Business Days prior to the maturity date of such Bankers' Acceptance followed
by written confirmation electronically transmitted to the Canadian
Administrative Agent on the same day, of CCCL's intention to issue a Bankers'
Acceptance on such maturity date (a "Refunding Bankers' Acceptance") to
provide for the payment of such maturing Bankers' Acceptance (it being
understood that payments by CCCL and fundings by the C$ Banks in respect of
each maturing Bankers' Acceptance and the related Refunding Bankers'
Acceptance shall be made on a net basis reflecting the difference between the
face amount of such maturing Bankers' Acceptance and the BA Discount Proceeds
(net of the applicable Acceptance Fee) of such Refunding Bankers' Acceptance).
Any repayment of Bankers' Acceptances must be made at or before 12:00 noon,
Toronto time, on the respective maturity dates of such Bankers' Acceptances.
If CCCL fails to give such notice, CCCL shall be deemed to have repaid such
maturing Bankers' Acceptances with funds obtained by way of C$ R/C Loans
commencing on the maturity date of such maturing Bankers' Acceptances.
(d) An Acceptance Fee shall be payable by CCCL to each C$ Bank in
advance (in the manner specified in Section 3.3(b)(ix)) upon the issuance of a
Bankers' Acceptance to be accepted by
<PAGE>
22
such Bank calculated at the rate per annum equal to the Applicable Margin,
such Acceptance Fee to be calculated on the face amount of such Bankers'
Acceptance and to be computed on the basis of the number of days in the term
of such Bankers' Acceptance. Subject to the additional amounts payable under
Section 3.3(e), the amount of Acceptance Fees to be paid as specified above
shall be the amount which would be due and payable if the Canadian Utilization
for the term of the relevant Bankers' Acceptance was less than 50%.
(e) On the first Business Day following the last day of each
Utilization Period, CCCL shall pay to the Canadian Administrative Agent, for
the ratable benefit of the C$ Banks an additional amount on account of
Acceptance Fees in respect of each Bankers' Acceptance outstanding during such
Utilization Period equal to an amount calculated by multiplying:
(A) a fraction, the numerator of which is the number of days in
the term of the Bankers' Acceptance in such Utilization Period
and the denominator of which is the number of days in the term
of the Bankers' Acceptance; by
(B) the excess (if any) of (A) the amount of Acceptance Fees which
would have been payable in respect of such Bankers' Acceptance
had the Canadian Utilization at the time of the issuance of
such Bankers' Acceptance been the same as the actual Canadian
Utilization during such Utilization Period, over (B) the
amount of Acceptance Fees which actually were paid in respect
of such Bankers' Acceptance.
(f) Upon the occurrence of any Event of Default, and in addition to
any other rights or remedies of any C$ Bank and the Canadian Administrative
Agent hereunder, any C$ Bank or the Canadian Administrative Agent as and by
way of collateral security (or such alternate arrangement as may be agreed
upon by CCCL and such Bank or the Canadian Administrative Agent, as
applicable) shall be entitled to deposit and retain in an account to be
maintained by the Canadian Administrative Agent (bearing interest at the
Canadian Administrative Agent's rates as may be applicable in respect of other
deposits of similar amounts for similar terms) amounts which are received by
such Bank or the Canadian Administrative Agent from CCCL hereunder or as
proceeds of the exercise of any rights or remedies of any C$ Bank or the
Canadian Administrative Agent hereunder against CCCL, to the extent such
amounts may be required to satisfy any contingent or unmatured obligations or
liabilities of CCCL to the C$ Banks or the Canadian Administrative Agent, or
any of them hereunder.
3.4 Conversion Option. Subject to the provisions of this Agreement,
CCCL may, prior to the Maturity Date, effective on any Business Day, convert,
in whole or in part, C$ R/C Loans into Bankers' Acceptances or vice versa upon
giving to the Canadian Administrative Agent prior irrevocable telephone or
written notice within the notice period and in the form which would be
required to be given to the Canadian Administrative Agent in respect of the
category of C$ Loan into which the outstanding C$ Loan is to be converted in
accordance with the provisions of Section 3.2 or 3.3, as applicable, followed
by written confirmation on the same day, provided that:
(A) no C$ R/C Loan may be converted into a Bankers' Acceptance
when any Event of Default has occurred and is continuing and
the Canadian Administrative Agent has or the Required C$ Banks
have determined in its or their sole discretion that such
conversion is not appropriate;
(B) each conversion to Bankers' Acceptances shall be for a minimum
aggregate amount of C$10,000,000 (and whole multiples of
C$100,000 in excess thereof) and each
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23
conversion to C$ R/C Loans shall be in a minimum aggregate
amount of C$5,000,000; and
(C) Bankers' Acceptances may be converted only on the maturity
date of such Bankers' Acceptances and, provided that, if less
than all Bankers' Acceptances are converted, then after such
conversion not less than C$10,000,000 (and whole multiples of
C$100,000 in excess thereof) shall remain as Bankers'
Acceptances.
3.5 Currency Fluctuations, etc. (a) No later than 2:00 P.M.,
Toronto time, on each Canadian Calculation Date, the Canadian Administrative
Agent shall (i) determine the Canadian Exchange Rate as of such date and (ii)
give notice thereof to CFC and CCCL. The Canadian Exchange Rate so determined
shall become effective on the first Business Day immediately following the
relevant Canadian Calculation Date (a "Canadian Reset Date") and shall remain
effective until the next succeeding Canadian Reset Date.
(b) No later than 2:00 P.M., New York City time, on each Canadian
Reset Date and each Borrowing Date in respect of C$ Loans, the Canadian
Administrative Agent shall (i) determine the US$ Equivalent of the C$ Loans
then outstanding (after giving effect to any C$ Loans to be made or repaid on
such date) and (ii) notify CFC and CCCL of the results of such determination.
(c) If, on any Canadian Reset Date (after giving effect to (i) any
C$ Loans to be made or repaid on such date and (ii) any increase or decrease
in any Canadian Commitment pursuant to Section 12.10 effective on such date of
which the Canadian Administrative Agent has received notice), the Aggregate
Canadian Extensions of Credit of any C$ Bank exceed the Canadian Commitment of
such Bank, then, within ten Business Days after notice thereof from the
Canadian Administrative Agent, (i) CCCL shall reduce the aggregate C$ Loans
and/or (ii) CFC shall increase the Canadian Commitments pursuant to Section
12.10 in an amount such that, after giving effect thereto, the Aggregate
Canadian Extensions of Credit of each C$ Bank shall be equal to or less than
the Canadian Commitment of such Bank.
(d) The Canadian Administrative Agent shall promptly furnish the
Administrative Agent and each affected C$ Bank with a copy of any notice
delivered to CFC or CCCL pursuant to this Section 3.5.
(e) Notwithstanding the foregoing provisions of this Section 3.5,
after the initial Canadian Calculation Date, the Canadian Administrative Agent
may at its option suspend the resetting of the Canadian Exchange Rate pursuant
to Section 3.5(a) and the making of the determinations referred to in Sections
3.5(b) and 3.5(c) during any period when the sum of the Aggregate Canadian
Extensions of Credit of all C$ Banks, calculated using the Canadian Exchange
Rate effective as of the last Canadian Reset Date prior to such suspension, is
less than 50% of the aggregate Canadian Commitments then in effect.
SECTION 4. GENERAL PROVISIONS
4.1 Evidence of Debt. (a) Each Bank shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of
each Facility Borrower to the appropriate lending office of such Bank
resulting from each Loan made by such lending office of such Bank from time to
time, including the amounts of principal and interest payable and paid to such
lending office of such Bank from time to time under this Agreement.
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24
(b) Each Agent shall maintain a Register pursuant to Section
12.7(c), and a subaccount for each relevant Bank, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each relevant
Loan made hereunder, whether such Loan is, as applicable, a U.S. R/C Loan, a
C$ R/C Loan or a Bankers' Acceptance, the Type of each U.S. R/C Loan made and
the Interest Period applicable to any Eurodollar Loan, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
relevant Facility Borrower to each relevant Bank hereunder and (iii) the
amount of any sum received by such Agent hereunder from the relevant Facility
Borrower and each relevant Bank's share thereof.
(c) The entries made in the Registers and accounts maintained
pursuant to paragraphs (a) and (b) of this Section 4.1 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the relevant Facility Borrower therein recorded;
provided, that the failure of any Bank or either Agent to maintain such
account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of each Facility
Borrower to repay the Loans (and all other amounts owing with respect thereto)
made to such Facility Borrower in accordance with the terms of this Agreement.
4.2 Repayment of Loans. The relevant Facility Borrower shall repay
all outstanding Loans (together with all accrued unpaid interest thereon) on
the Maturity Date.
4.3 Interest Rate and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period therefor on the unpaid
principal amount thereof at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest for each day on the
unpaid principal amount thereof, at a rate per annum equal to the Base Rate
determined for such day.
(c) Each C$ Prime Loan shall bear interest for each day on the
unpaid principal amount thereof, at a rate per annum equal to the Canadian
Prime Rate determined for such day.
(d) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any Facility Fee, Acceptance Fee or
other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal,
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section 4.3 plus 1% or (y) in the case of any overdue
interest, Facility Fee, Acceptance Fee or other amount, the rate described in
Section 4.3(b) (in the case of amounts payable in Dollars) or 4.3(c) (in the
case of amounts payable in C$) plus 1%, in each case from the date of such
non-payment to (but excluding) the date on which such amount is paid in full
(as well after as before judgment).
(e) Interest shall be payable in arrears (i) with respect to
Eurodollar Loans having an Interest Period of three months or less, on the
last day of such Interest Period, (ii) with respect to Eurodollar Loans having
an Interest Period longer than three months, on each day which is three
months, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period, (iii) with respect to Base
Rate Loans and C$ Prime Loans, on the last day of each March, June, September
and December, and (iv) with respect to all Loans, upon each repayment,
prepayment or conversion thereof; provided that interest accruing pursuant to
Section 4.3(d) shall be payable on demand. Interest payable in respect of U.S.
R/C Loans shall be payable in Dollars by CFC and interest payable in respect
of C$ Loans shall be payable in C$ by CCCL (subject to Section 12).
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25
(f) The amount of interest on any Eurodollar Loans to be paid on
any date as specified in paragraph (e) above shall in each case be determined
under the assumption that the U.S. Utilization for the Utilization Period(s)
during which such interest accrued was less than 50%. On the first Business
Day following the last day of each Excess U.S. Utilization Period, CFC shall
pay to the Administrative Agent, for the benefit of the US$ Banks, an
additional amount of interest equal to the excess (if any) of (i) the amount
of interest which accrued during such U.S. Utilization Period after giving
effect to the actual U.S. Utilization for such Utilization Period (whether or
not such accrued interest was actually payable during such Utilization Period)
over (ii) the amount of interest which would have accrued during such
Utilization Period if the U.S. Utilization during such Utilization Period had
been less than 50%.
4.4 Lending Procedures. (a) Unless the relevant Agent shall have
received notice from a Bank prior to a Borrowing Date that such Bank will not
make available to such Agent such Bank's share of the borrowing requested to
be made on such Borrowing Date, such Agent may assume that such Bank has made
its share of such borrowing available to such Agent on such Borrowing Date,
and such Agent may, in reliance upon such assumption, make available to the
relevant Facility Borrower on such Borrowing Date a corresponding amount. If
such Agent does, in such circumstances, make available to such Facility
Borrower such amount, such Bank shall within three Business Days following
such Borrowing Date make its share of such borrowing available to such Agent,
together with interest thereon for each day from and including such Borrowing
Date that its share of such borrowing was not made available, to but excluding
the date such Bank makes its share of such borrowing available to such Agent,
at the Effective Federal Funds Rate (in the case of U.S. R/C Loans) or at the
then effective Bank Rate (in the case of C$ Loans). If such amount is so made
available, such payment to such Agent shall constitute such Bank's Loan on
such Borrowing Date for all purposes of this Agreement. If such amount is not
so made available to the relevant Agent, then such Agent shall notify such
Facility Borrower of such failure, and, on the fourth Business Day following
such Borrowing Date, such Facility Borrower shall pay to such Agent such
amount, together with interest thereon for each day that such Facility
Borrower had the use of such ratable portion at the Effective Federal Funds
Rate (in the case of U.S. R/C Loans) or at the then effective Bank Rate (in
the case of C$ Loans). Nothing contained in this Section 4.4(a) shall relieve
any Bank which has failed to make available its share of any borrowing
hereunder from its obligation to do so in accordance with the terms hereof.
(b) The failure of any Bank to make the Loan to be made by it on
any Borrowing Date shall not relieve any other Bank of its obligation, if any,
hereunder to make its Loan on such Borrowing Date, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be made by
such other Bank on such Borrowing Date.
4.5 Facility Fees. CFC agrees to pay to the Administrative Agent,
for the account of each US$ Bank, in Dollars, a facility fee (the "Facility
Fee") for each day from and including the Effective Date to but excluding the
later of (a) the last day of the Commitment Period and (b) the date on which
all of the Loans shall have been paid in full (such later date, the "Final
Date"). Such fee shall be payable quarterly in arrears on (i) the first
Business Day of each January, April, July and October (for the three-month
period (or portion thereof) ended on the last day of the immediately preceding
month) and (ii) on the Final Date (for the period ended on such date for which
no payment has been received pursuant to clause (i) above) and shall be
computed for each day during such period at a rate per annum equal to the
Facility Fee Rate in effect on such day on the US$ Bank Combined Commitment of
such Bank in effect on such day.
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26
4.6 Termination or Reduction of Commitments. (a) Prior to the
Termination Date, CFC shall have the right, upon not less than five Business
Days' notice to each Agent, to terminate the Commitments or, from time to
time, to reduce the amount of the U.S. Commitments (so long as, after giving
effect thereto and any contemporaneous prepayment of the Loans, the Aggregate
U.S. Extensions of Credit of each US$ Bank shall be no greater than such
Bank's U.S. Commitment) or reduce the amount of the Canadian Commitments (so
long as, after giving effect thereto and any contemporaneous prepayment of the
C$ Loans, the Aggregate Canadian Extensions of Credit of each C$ Bank shall be
no greater than such Bank's Canadian Commitment). Upon receipt of such notice
the Administrative Agent shall promptly notify each relevant Bank thereof. Any
such reduction shall be in an amount of at least $100,000,000 (in the case of
the U.S. Commitments) or $10,000,000 (in the case of the Canadian Commitments)
and shall reduce permanently the amount of the affected Commitments then in
effect. Any termination of the Commitments pursuant to this Section 4.6(a)
shall be accompanied by prepayment in full of the Loans, together with accrued
interest thereon to the date of such prepayment.
(b) The Commitments shall automatically terminate on the
Termination Date.
4.7 Optional Prepayments. Each Facility Borrower may at any time
and from time to time prepay the Loans made to it hereunder, in whole or in
part, without premium or penalty, upon prior notice to the relevant Agent
(which notice must be received by the relevant Agent prior to 10:00 A.M.,
Local Time, (i) three Business Days prior to the repayment date in the case of
Eurodollar Loans and (ii) one Business Day prior to the repayment date
otherwise) specifying the date and amount of prepayment, and the category or
categories of Loan to be prepaid; provided, that each prepayment of Eurodollar
Loans on a day other than the last day of the related Interest Period shall
require the payment of any amounts payable by CFC pursuant to Section 4.12.
Upon receipt of any such notice, the relevant Agent shall promptly notify each
relevant Bank thereof. Any such notice shall be irrevocable, and the payment
amount specified in such notice shall be due and payable on the date
specified, together with accrued interest to such date on the amount prepaid.
Partial prepayments shall be in an aggregate principal amount of $25,000,000
or a multiple of $1,000,000 in excess thereof (in the case of U.S. R/C Loans)
and C$5,000,000 or a multiple of $1,000,000 in excess thereof (in the case of
C$ Prime Loans). Notwithstanding anything to the contrary above, Loans
consisting of Bankers' Acceptances may not be prepaid pursuant to this Section
4.7.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of U.S. R/C
Loans shall be made pro rata according to the then existing U.S. Commitments
of the US$ Banks. Each borrowing of C$ R/C Loans shall be made pro rata
according to the then existing Canadian Commitments of the C$ Banks. Each
payment of Facility Fees (except as a result of an increase in a particular
Bank's Facility Fee pursuant to Section 4.11(a)) shall be made pro rata
according to the amounts of the then existing US$ Bank Combined Commitments of
the US$ Banks. Any reduction of the amount of the Commitments of the Banks
hereunder (except for the termination or reduction of a particular Bank's
Commitment pursuant to Section 4.11(a)) shall be made pro rata according to
the amounts of the then existing relevant Commitments. Each payment (including
each prepayment) by a Facility Borrower on account of principal of and
interest on (except for payments to a particular Bank pursuant to Section 2.5,
4.10, 4.11, 4.12 or 4.13) any category of Loan (other than Eurodollar Loans)
shall be made on a pro rata basis according to the amounts of the then
outstanding Loans of such type of the relevant Banks. Each payment (including
each prepayment) by CFC on account of principal of and interest on Eurodollar
Loans designated by CFC to be applied to a particular Eurodollar Tranche shall
be made pro rata according to the respective outstanding principal amounts of
such Eurodollar Loans then held by the US$ Banks. All payments (including
prepayments) by the relevant Facility Borrower hereunder on account of
principal, interest, fees and other amounts shall be made without
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27
setoff or counterclaim to the relevant Agent for the account of the relevant
Banks at the office of the relevant Agent referred to in Section 12.2 in
Dollars or C$, as applicable, in immediately available funds. In the case of
amounts relating to U.S. R/C Loans, the Administrative Agent shall promptly
distribute such payments to each US$ Bank entitled to receive a portion
thereof by causing such Bank's portion of such payment to be deposited in such
Bank's Clearing Account. If any payment hereunder (other than a payment in
respect of a Eurodollar Loan) becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month in which event such payment
shall be made on the immediately preceding Business Day. In the case of any
extension of any payment of principal pursuant to the preceding two sentences,
interest thereon shall be payable at the then applicable rate during such
extension. The provisions of the first five sentences of this Section 4.8(a)
shall not apply to any borrowing or prepayment made pursuant to Section 12.10.
(b) Unless the relevant Agent shall have received notice from the
relevant Facility Borrower prior to the date on which any payment is due to
the relevant Banks hereunder that such Facility Borrower will not make such
payment in full, such Agent may assume that such Facility Borrower has made
such payment in full to such Agent on such date, and such Agent may, in
reliance upon such assumption, cause to be distributed to each such Bank on
such due date an amount equal to the amount then due to such Bank. If and to
the extent such Facility Borrower shall not have so made such payment in full
to such Agent, each such Bank shall repay to such Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from and including the date such amount is distributed to such Bank to but
excluding the date such Bank repays such amount to such Agent at the Effective
Federal Funds Rate (in the case of U.S. R/C Loans) or the then effective Bank
Rate (in the case of C$ Loans) for each such day. Nothing contained in this
Section 4.8(b) shall relieve either Facility Borrower from its obligations to
make payments on all amounts due hereunder in accordance with the terms
hereof.
4.9 Computation of Interest and Fees. (a) Interest (other than
interest calculated on the basis of the Prime Rate or the Canadian Prime Rate)
shall be calculated on the basis of a 360-day year for the actual days
elapsed. Facility Fees, Acceptance Fees and interest calculated on the basis
of the Prime Rate or the Canadian Prime Rate shall be calculated on the basis
of a 365- (or 366-, as the case may be) day year for the actual days elapsed.
The relevant Agent shall, as soon as practicable, notify the relevant Facility
Borrower and the relevant Banks of each determination of the Eurodollar Rate
or the Applicable BA Discount Rate. Any change in the interest rate in respect
of a Loan or in any Facility Fee or Acceptance Fee resulting from a change in
the Base Rate, the Canadian Prime Rate, the Applicable Margin or Status shall
become effective as of the opening of business on the day on which a change in
the Base Rate or Canadian Prime Rate shall become effective or such Applicable
Margin or Status changes as provided herein, as the case may be. The relevant
Agent shall notify the relevant Facility Borrower and the relevant Banks of
the effective date and the amount of each such change in the Base Rate or
Canadian Prime Rate.
(b) Each determination, pursuant to and in accordance with any
provision of this Agreement, of the Eurodollar Rate or the Applicable BA
Discount Rate by the relevant Agent, and each determination by a Reference
Bank of a rate with respect to a Eurodollar Loan or a Bankers' Acceptance to
be notified to the relevant Agent pursuant to the definition of "Eurodollar
Rate" or "Applicable BA Discount Rate", as the case may be, shall be
conclusive and binding on the Facility Borrowers and the Banks in the absence
of manifest error. The relevant Agent shall, at the request of the relevant
Facility Borrower, deliver to such Facility Borrower a statement showing any
quotations
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28
given by the relevant Reference Banks and the computations used by such Agent
in determining any Eurodollar Rate or Applicable BA Discount Rate.
(c) If any Reference Bank's relevant Commitment shall terminate
(otherwise than on termination of all the Commitments) or, as the case may be,
the relevant Loans made by it hereunder are assigned, or prepaid or repaid
(otherwise than on the prepayment or repayment of the relevant Loans among the
Banks) for any reason whatsoever, such Reference Bank shall thereupon cease to
be a Reference Bank, and if, as a result of the foregoing, there shall be only
one Reference Bank of a particular category remaining, then the relevant Agent
(after consultation with the relevant Facility Borrower and the relevant
Banks) shall, as soon as practicable thereafter, by notice to the Facility
Borrowers and the relevant Banks, designate another Bank that is willing to
act as a Reference Bank so that there shall at all times be at least two
Reference Banks of each category. In acting so to designate another Bank to
serve as a Eurodollar Reference Bank, the Administrative Agent will use its
best efforts to ensure that one Eurodollar Reference Bank will, at all times,
be a US$ Bank that has its headquarters office located outside the United
States.
(d) If any of the Reference Banks shall be unable or shall
otherwise fail to provide notice of a rate to the relevant Agent upon its
request, the Eurodollar Rate or Applicable BA Discount Rate, as applicable,
shall be determined on the basis of rates provided in notices of the remaining
relevant Reference Banks.
4.10 Increased Costs. In the event that any law, regulation, treaty
or directive or any change therein or in the interpretation or application
thereof or compliance by any Bank with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority enacted or made subsequent to the date hereof:
(a) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Bank; or
(b) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining advances or extensions of credit hereunder to either
Facility Borrower or to reduce any amounts receivable hereunder from either
Facility Borrower (such increase in cost or reduction in amounts receivable,
"Increased Costs") then, in any such case, such Facility Borrower shall
promptly pay to the relevant Agent for the account of such Bank, upon the
written demand of such Bank to such Facility Borrower (with a copy to the
relevant Agent), so long as such Increased Costs are not otherwise included in
the amounts required to be paid to such Bank pursuant to Section 2.5(b), 4.11,
4.12 or 4.13, any additional amounts necessary to compensate such Bank for
such Increased Costs which such Bank deems to be material as determined by
such Bank with respect to its Eurodollar Loans or Bankers' Acceptances, as the
case may be. If a Bank becomes entitled to claim any additional amounts
pursuant to this Section 4.10, it shall promptly notify the relevant Facility
Borrower, through the relevant Agent, of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by a Bank, through the relevant
Agent, to the relevant Facility Borrower shall be conclusive in the absence of
manifest error.
4.11 Changes in Capital Requirements. (a) In the event that, in the
opinion of counsel for any Bank (which may, in the discretion of such Bank, be
such Bank's internal counsel),
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29
compliance with any law, rule, regulation or guideline, or any change therein
or in the interpretation or application thereof or compliance by any Bank with
any request or directive (whether or not having the force of law) from any
central bank or Governmental Authority enacted or made subsequent to the date
hereof shall affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank and the
amount of such capital that is required or expected to be maintained is
increased by or based upon the Commitment of such Bank under this Agreement or
any participation agreement entered into pursuant to Section 12.7, as
applicable (such event, a "Change in Law"), such affected Bank shall notify
CFC and the Administrative Agent within 180 days after such affected Bank
shall have obtained actual knowledge of the costs associated with its
compliance with such Change in Law (but in no event later than 365 days after
such Bank is first required to comply with such Change in Law). At the time of
such notification such affected Bank shall provide CFC with a written
statement setting forth the amount that would adequately compensate such
affected Bank for the costs associated with its compliance with such Change in
Law and setting forth in reasonable detail the assumptions upon which such
affected Bank calculated such amount, and a copy of the opinion of counsel
referred to in the preceding sentence. Such affected Bank shall allocate to
the Facility Borrowers the costs associated with such Change in Law in such a
way that the proportion of (i) such costs that are allocated to the Facility
Borrowers to (ii) the total of such costs of such affected Bank associated
with such Change in Law as it relates to all commitments of such Bank to its
customers of similar creditworthiness as the Facility Borrowers, is
substantially the same as the proportion of (i) the Commitment of such
affected Bank under this Agreement or such participation agreement to (ii) the
total of all commitments by such affected Bank to its customers of similar
creditworthiness as the Facility Borrowers. CFC and such affected Bank shall
thereafter negotiate in good faith an agreement to increase that portion of
the Facility Fee payable to such affected Bank under Section 4.5 to a level,
which, in the opinion of such affected Bank, will adequately compensate such
affected Bank for such costs. If such increase is approved in writing by CFC
within 90 days from the date of the notice to CFC from such affected Bank, the
Facility Fee payable by CFC shall, effective from the date of such Change in
Law (but subject to the last sentence of this Section 4.11(a)) include the
amount of such agreed increase, and CFC will so notify the Administrative
Agent. If CFC and such affected Bank are unable to agree on such an increase
within 90 days from the date of the notice to CFC from such affected Bank, CFC
shall by written notice to such affected Bank within 120 days from the date of
the aforesaid notice to CFC from such affected Bank, elect either to (a)
terminate the Commitment of such affected Bank (each such Bank, a "Terminated
Bank") (subject to the last sentence of this Section 4.11(a)) or (b) (subject
to the next to last sentence of this Section 4.11(a)) increase the Facility
Fee payable to such affected Bank by the amount requested by such affected
Bank. Without limiting the foregoing, if CFC elects to take the action
described in clause (b) of the preceding sentence, it may simultaneously
therewith reduce the Commitment of such affected Bank by an amount chosen by
CFC. If CFC fails to provide notice to such affected Bank as described in the
second preceding sentence by such 120th day, CFC shall be deemed to have taken
the action described in clause (b) of such second preceding sentence. CFC (A)
may from time to time after such 120th day reduce the compensation to be
received pursuant to this Section 4.11(a) by any affected Bank as a result of
any Change in Law, to the average compensation (the "Average Compensation")
CFC has agreed, as provided above, to pay the affected Banks as a result of
such Change in Law (such average compensation to be measured by a percentage
of the aggregate Commitments of such affected Banks) and (B) shall pay to each
Terminated Bank, on the date the Commitment of such Bank is terminated, an
amount equal to the excess, if any, of (i) the lesser of (x) the aggregate
Facility Fee that would have been payable to such Bank, from the date of such
Terminated Bank's notice to CFC pursuant to this Section 4.11(a) to the date
the Commitment of such Terminated Bank is terminated, had such Facility Fee
been determined by reference to the Average Compensation and (y) the aggregate
Facility Fee that would have been payable to such Bank during such period had
such Facility Fee been increased by an amount necessary to adequately
compensate such Bank (as
<PAGE>
30
determined by such Bank in accordance with the applicable provisions of this
Section 4.11(a)) for the costs attributable to the relevant Change in Law over
(ii) the aggregate Facility Fee actually paid to such Bank during such period.
(b) On the day the Commitment of a Terminated Bank is terminated
pursuant to Section 4.11(a), CFC or CCCL, as applicable, shall (i) repay all
Loans and other amounts (including accrued interest and Facility Fees) owing
to such Terminated Bank, (ii) be liable to such Terminated Bank under Section
4.12 if any Eurodollar Loans owing to such Terminated Bank shall be repaid
other than on the last day of the Interest Period relating to such Eurodollar
Loan, and (iii) in the case of CCCL, pay to such Terminated Bank an amount
equal to the maximum aggregate amount of CCCL's obligations pursuant to any
Bankers' Acceptance accepted by such Terminated Bank, which amount shall be
held by such Terminated Bank in an interest bearing account as collateral
security for CCCL's obligations to such Terminated Bank with respect to any
such Bankers' Acceptance, and CCCL shall execute in favor of such Terminated
Bank a cash collateral agreement (or such alternate arrangement as may be
agreed upon by CCCL and such Terminated Bank) in form and substance
satisfactory to such Terminated Bank in respect of such amount.
(c) Upon the occurrence of any Change in Law each Bank whose
Commitment hereunder is affected by such Change in Law shall transfer its
Commitment to another branch office (or, if such Bank so elects, to an
affiliate) of such Bank, provided that such transfer shall be made only if
such Bank shall have determined in good faith (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) that
(i) on the basis of existing circumstances, such transfer will avoid the
increased costs resulting from such Change in Law and will not result in any
additional costs, liabilities or expenses to such Bank (unless CFC agrees to
pay such additional costs, liabilities or expenses of such Bank) and (ii) such
transfer is otherwise consistent with the interests of such Bank.
4.12 Indemnity. Each of CFC and CCCL, as applicable, agrees to
indemnify each Bank and to hold such Bank harmless from any loss or expense
(including, but not limited to, any such loss or expense arising from interest
or fees payable by such Bank to lenders of funds obtained by it in order to
maintain its Eurodollar Loans hereunder, but excluding loss of the Applicable
Margin), which such Bank may sustain or incur as a consequence of (a) failure
by either Facility Borrower in making any payment when due (whether by
acceleration or otherwise) of the principal amount of or interest on the
Eurodollar Loans or Bankers' Acceptances of such Bank, (b) failure by either
Facility Borrower to make a borrowing consisting of Eurodollar Loans or
Bankers' Acceptances, or a conversion into or continuation of Eurodollar Loans
or Bankers' Acceptances, after such Facility Borrower has given a notice
requesting or accepting the same in accordance with the provisions of this
Agreement, (c) failure by either Facility Borrower in making any prepayment
after such Facility Borrower has given a notice in accordance with this
Agreement and (d) a payment or prepayment of a Eurodollar Loan on a day that
is not the last day of the Interest Period with respect thereto. In the case
of Eurodollar Loans, such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such payment, prepayment or of such failure to borrow,
convert or continue to the last day of the relevant Interest Period (or
proposed Interest Period), in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin)
over (ii) the amount of interest (as reasonably determined by such Bank) which
would have accrued to such Bank on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. The agreements in this Section 4.12 shall survive the payment of the
Loans and all other amounts payable hereunder.
<PAGE>
31
4.13 Taxes. (a) In the event that the adoption of any law,
regulation, treaty or directive or any change therein or in the interpretation
or application thereof, in each case after the date hereof, shall require any
Taxes (as hereinafter defined) to be withheld or deducted from any amount
payable to any Bank under this Agreement, upon notice by such Bank to the
relevant Facility Borrower (with a copy to the relevant Agent) to the effect
that (i) as a result of the adoption of such law, rule, regulation, treaty or
directive or a change therein or in the interpretation thereof, Taxes are
being withheld or deducted from amounts payable to such Bank under this
Agreement and (ii) such Bank has taken all action required to be taken by it
to avoid the imposition of such Taxes pursuant to paragraph (c) of this
Section 4.13 prior to demanding indemnification under this paragraph (a), such
Facility Borrower will pay to the relevant Agent for the account of such Bank
additional amounts so that such additional amounts, together with amounts
otherwise payable under this Agreement, will yield to such Bank, after
deduction from such increased amount of all Taxes required to be withheld or
deducted therefrom, the amount stated to be payable under this Agreement. The
term "Taxes" shall mean all net income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, imposed, levied, collected,
withheld or assessed by any country (or by any political subdivision or taxing
authority thereof or therein), excluding, with respect to any Bank, net income
and franchise taxes imposed with respect to net income of any country (or any
political subdivision or taxing authority thereof or therein) where such Bank
is organized or, in respect of such Bank's Eurodollar Loans, by the country
(or any political subdivision or tax authority thereof or therein) where such
Bank's Eurodollar Loans are booked and, in respect of such Bank's Base Rate
Loans, by the country (or any political subdivision or tax authority thereof
or therein) where such Bank's Base Rate Loans are booked (such excluded taxes,
"Other Taxes"). If the relevant Facility Borrower fails to pay any Taxes when
due following notification by any Bank as provided above, such Facility
Borrower shall indemnify such Bank for any incremental taxes, interest or
penalties that may become payable by any Bank as a result of any such failure
by such Facility Borrower to make such payment. Either Facility Borrower may,
upon payment by such Facility Borrower to any Bank claiming indemnification
under this paragraph (a) of any amount payable by such Facility Borrower to
such Bank, elect by not less than four Business Days' prior written notice to
such Bank to terminate the Commitment of such Bank and prepay or cash
collateralize (in the case of Bankers' Acceptances) the outstanding Loans of
such Bank.
(b) Each Bank that is not incorporated under the laws of the United
States of America or a state thereof agrees that it will deliver to CFC and
the Administrative Agent (i) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or any successor applicable form,
as the case may be, and (ii) an Internal Revenue Service Form W-8 or W-9 or
any successor form. Each such Bank also agrees to deliver to CFC and the
Administrative Agent two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable forms or other manner of certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to CFC, and such extensions or renewals
thereof as may reasonably be requested by CFC or the Administrative Agent,
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank so advises CFC and the Administrative
Agent. Such Bank shall certify (i) in the case of Form 1001 or 4224, that it
is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (ii) in the case of
a Form W-8 or W-9, that it is entitled to an exemption from United States
backup withholding tax.
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32
(c) No Bank may request indemnification for any Taxes from either
Facility Borrower under paragraph (a) of this Section 4.13 to the extent that
such Taxes would have been avoided or reduced by such Bank's transfer of its
Loans affected by such event to another office of such Bank (or to an
affiliate of such Bank), by such Bank's properly claiming the benefit of any
exemption from or reduction of such Taxes (whether provided by statute, treaty
or otherwise), including, without limitation, by delivering the forms required
by paragraph (b) of this Section 4.13, or by such Bank's taking any other
action which in its judgment is reasonable to avoid or reduce such Taxes,
provided that such Bank shall not be required to (i) take any action which in
the reasonable judgment of such Bank could directly or indirectly result in
any increased cost or expense or in any loss of opportunity to such Bank
unless the relevant Facility Borrower shall have provided to such Bank
indemnity or reimbursement therefor in form and substance reasonably
satisfactory to such Bank or (ii) claim or apply any tax credit against such
Taxes.
(d) Within 30 days after the payment by either Facility Borrower of
any Taxes withheld or deducted from any amount payable to any Bank under this
Agreement, and irrespective of whether such Bank is entitled to demand
indemnification in respect thereof under paragraph (a) above, such Facility
Borrower will furnish to such Bank (with a copy to the relevant Agent), the
original or a certified copy of a receipt evidencing payment thereof.
4.14 Use of Proceeds. The proceeds of the Loans shall be used by
each Facility Borrower for general corporate purposes.
4.15 Replacement of Banks. CFC shall be permitted to replace any
Bank which (a) requests reimbursement for amounts owing pursuant to Section
2.5, 4.10, 4.11, 4.13 or 12.6(c)(i) or (b) defaults in its obligation to make
Loans, with a replacement Commercial Bank; provided that (i) such replacement
does not conflict with any Requirement of Law, (ii) no Event of Default shall
have occurred and be continuing at the time of such replacement, (iii) the
relevant Facility Borrower shall repay (or the replacement Commercial Bank
shall purchase, at par) all Loans (other than Bankers' Acceptances) and other
amounts (including accrued interest) owing to such replaced Bank concurrently
with such replacement, (iv) in the case of any replaced C$ Banks, (x) CCCL
shall pay to such replaced Bank an amount equal to the maximum aggregate
amount of CCCL's obligations pursuant to any Bankers' Acceptance accepted by
such replaced Bank, which amount shall be held by such replaced Bank in an
interest bearing account as collateral security for CCCL's obligations to such
replaced Bank with respect to such Bankers' Acceptance, and CCCL shall execute
in favor of such replaced Bank a cash collateral agreement (or such alternate
arrangement as may be agreed upon by CCCL and such replaced Bank) in form and
substance satisfactory to such replaced Bank in respect of such amount and (y)
CCCL shall give the Canadian Administrative Agent notice of the provision of
any such collateral security, (v) CFC shall be liable to such replaced Bank
under Section 4.12 if any Eurodollar Loan owing to such replaced Bank shall be
prepaid (or purchased) other than on the last day of the Interest Period
relating thereto, (vi) the replacement Commercial Bank, if not already a Bank,
and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (vii) the replaced Bank shall be
obligated to make such replacement in accordance with the provisions of
Section 12.7 (provided that CFC shall be obligated to pay the registration and
processing fee referred to therein), (viii) until such time as such
replacement shall be consummated, the Facility Borrowers shall pay all
additional amounts (if any) required pursuant to Section 2.5, 4.10, 4.11, 4.13
or 12.6(c)(i), as the case may be, (ix) any replacement of a Bank which
requests reimbursement for amounts owing pursuant to Section 12.6(c)(i) shall
apply only to such Bank in its capacity as a C$ Bank, and (x) any such
replacement shall not be deemed to be a waiver of any rights which the
Facility Borrowers, any Agent or any other Bank shall have against the
replaced Bank.
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33
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and to
make the Loans herein provided for, CFC and, to the extent applicable, CCCL,
hereby represents and warrants to each Bank that:
5.1 Financial Condition. The consolidated balance sheet of CFC and
its Subsidiaries as at December 31, 1994, and the related consolidated
statements of net earnings and cash flows for the fiscal year ended on such
date, certified by Deloitte & Touche, copies of which have been delivered to
each Bank, present fairly the consolidated financial position of CFC and its
Subsidiaries as at such date, and the consolidated results of their operations
and cash flows for the fiscal year then ended. The unaudited consolidated
balance sheet of CFC and its Subsidiaries as at March 31, 1995, and the
related consolidated statements of net earnings and cash flows for the
three-month period ended on such date, certified by a Responsible Officer,
copies of which have been delivered to each Bank, present fairly the
consolidated financial condition of CFC and its Subsidiaries as at such date,
and the consolidated results of their operations for the three-month period
then ended (subject to normal year-end audit adjustments). Such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP. As at March 31, 1995, neither CFC nor any of
its Subsidiaries had any asset, liability, contingent obligation, liability
for taxes, long-term lease or unusual forward or long-term commitment material
to the financial condition of CFC and its Subsidiaries taken as a whole, which
was not reflected in the foregoing statements or in the notes thereto.
5.2 No Change. Between December 31, 1994 and the Effective Date
there has been no material adverse change in the business, operations or
financial condition of CFC and its Subsidiaries taken as a whole.
5.3 Corporate Existence. Each Facility Borrower (a) is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization, and (b) is duly qualified as a
foreign corporation to do business and is in good standing in each of the
jurisdictions in which the character of the properties owned or held under
lease by it or the nature of business transacted by it makes such
qualification necessary, except in the case of this clause (b) to the extent
that the failure to be so qualified or in good standing would not have a
material adverse effect on the business, operations or financial condition of
CFC and its Subsidiaries taken as a whole.
5.4 Corporate Authorization; No Violation. The execution, delivery
and performance by each Facility Borrower of this Agreement are within the
corporate powers of such Facility Borrower, have been duly authorized by all
necessary corporate action, and do not contravene any Requirement of Law or
Contractual Obligation of CFC or any of its Subsidiaries, except to the extent
that such contravention would not have a material adverse effect on the
business, operations or financial condition of CFC and its Subsidiaries taken
as a whole or on the ability of such Facility Borrower to fulfill its
obligations under this Agreement or on the rights and remedies of the Agents
and the Banks hereunder.
5.5 Government Authorization. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority is
required to be obtained or made by CFC or any of its Subsidiaries for the due
execution, delivery and performance by each Facility Borrower of this
Agreement.
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5.6 Federal Regulations. Neither CFC nor any of its Subsidiaries is
principally engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U, T, G
or X issued by the Federal Reserve Board), and no proceeds of any borrowing
hereunder will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock.
5.7 Enforceable Obligations. This Agreement has been duly executed
and delivered on behalf of each Facility Borrower, and this Agreement
constitutes a legal, valid and binding obligation of each Facility Borrower
enforceable against such Facility Borrower in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by principles of equity, whether considered in
a proceeding in equity or at law.
5.8 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of either Facility Borrower, threatened by or against CFC
or any of its Subsidiaries or against any of its or their respective
properties or revenues, in which there is a reasonable likelihood of an
adverse determination (a) with respect to this Agreement or any of the
transactions contemplated hereby, if such adverse determination would have a
material adverse effect on the ability of either Facility Borrower to fulfill
its obligations under this Agreement or on the rights and remedies of the
Administrative Agent and the Banks hereunder or (b) which would, if adversely
determined, have a material adverse effect on the business, operations,
property or financial condition of CFC and its Subsidiaries taken as a whole.
5.9 Taxes. Each of CFC and its Subsidiaries has filed or caused to
be filed all material tax returns which to the knowledge of either Facility
Borrower are required to be filed, and has paid all material taxes shown to be
due and payable on said returns or on any assessments made against it or any
of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than those the amount
or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP, if
any, have been provided on the books of CFC or its Subsidiaries, as the case
may be).
5.10 ERISA. No Prohibited Transaction or Accumulated Funding
Deficiency (other than those that have been waived by the Internal Revenue
Service) has occurred since July 1, 1974 with respect to any Plan and no
Reportable Event has occurred since July 1, 1974 with respect to any Plan
which could in either case subject CFC or any of its Subsidiaries to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of CFC and its
Subsidiaries taken as a whole. The projected benefit obligations with respect
to all benefits, both vested and nonvested, under all Single Employer Plans
(based on the most recently available actuarial information and computed in
accordance with Statement of Accounting Standards No. 87) maintained by CFC or
a Commonly Controlled Entity did not exceed, at December 31, 1994, the fair
value of the assets of such Plans.
5.11 Investment Company Act; Other Regulations. No Facility
Borrower is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of
1940, as amended. No Facility Borrower is subject to regulation under any
statute or regulation of the United States or Canada (or any governmental unit
thereof) which limits its ability to incur Indebtedness.
<PAGE>
35
5.12 Existing Financial Covenants. Schedule II hereto sets forth a
list of all Material Indebtedness of CFC or any Significant Subsidiary the
documentation with respect to which includes a financial covenant which is
more onerous than, or materially different from, the financial covenant
contained in Section 8.1, together with a complete and correct transcription
of the text of each such financial covenant.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness. The effectiveness of this
Agreement is subject to the satisfaction of the following conditions
precedent:
(a) Execution of Agreement and Addenda. (i) This Agreement shall
have been executed and delivered by a duly authorized officer of each
Facility Borrower and each Agent and (ii) the Administrative Agent shall
have received an executed Addendum (or a copy thereof by facsimile
transmission) from each Person listed on Schedule I, provided, that,
notwithstanding the foregoing, in the event that an Addendum has not
been duly executed and delivered by each Person listed on Schedule I on
the date (which shall be no earlier than the date hereof) on which this
Agreement shall have been executed and delivered by each of CFC and the
Administrative Agent, this Agreement shall, subject to satisfaction of
the other conditions precedent set forth in this Section 6.1,
nevertheless become effective on such date with respect to those Persons
which have executed and delivered an Addendum on or before such date if
on such date CFC and the Administrative Agent shall have designated one
or more Commercial Banks (the "Designated Banks") to assume, in the
aggregate, all of the Commitments which would have been held by the
Persons listed on Schedule I (the "Non-Executing Persons") which have
not so executed an Addendum (subject to each such Designated Bank's
prior written consent in its sole discretion and its execution of an
Addendum). Schedule I shall automatically be deemed to be amended to
reflect the respective Commitments of the Designated Banks and the
omission of the Non-Executing Persons as Banks hereunder.
(b) Closing Certificate. The Administrative Agent shall have
received a certificate of each Facility Borrower, dated the Effective
Date, substantially in the form of Exhibit B, with appropriate
insertions, satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the Secretary
or any Assistant Secretary of such Facility Borrower, and attaching the
documents referred to in Section 6.1(c) and (d).
(c) Corporate Proceedings of the Facility Borrowers. The
Administrative Agent shall have received a copy of the resolutions, in
form and substance satisfactory to the Administrative Agent, of the
Board of Directors of each Facility Borrower (or a duly authorized
committee thereof) authorizing (i) the execution, delivery and
performance of this Agreement and (ii) the borrowings by such Facility
Borrower contemplated hereunder.
(d) Corporate Documents. The Administrative Agent shall have
received true and complete copies of the certificate of incorporation or
amalgamation and by-laws of each Facility Borrower.
(e) Legal Opinions. The Administrative Agent shall have received
the following executed legal opinions, with a copy for each Bank:
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36
(i) the executed legal opinion of Simpson Thacher & Bartlett,
counsel to the Administrative Agent, substantially in the form of
Exhibit C-1;
(ii) the executed legal opinion of Allan L. Ronquillo, Esq.,
General Counsel of CFC, substantially in the form of Exhibit C-2;
and
(iii) the executed legal opinion of Gowling, Strathy &
Henderson, Canadian Counsel to CCCL, substantially in the form of
Exhibit C-3.
(f) Existing Agreements. The Administrative Agent shall have
received satisfactory evidence that each of the Existing Agreements
shall have been terminated pursuant to an irrevocable notice of
termination and that any amounts owing thereunder (including, without
limitation, accrued unpaid commitment fees thereunder through the
Effective Date) by the relevant Facility Borrower shall have been (or
shall upon the occurrence of the Effective Date be) paid in full.
Without affecting any terms of any Existing Agreement which expressly
survive the termination of such Existing Agreement, each Bank party to
any Existing Agreement hereby waives any requirement of advance notice
of such termination contained in such Existing Agreement and hereby
agrees that such Existing Agreement and the commitments thereunder
(subject to receipt of any other required consents of any other Person)
shall terminate simultaneously with the satisfaction of the conditions
to effectiveness set forth in this Section 6.1.
The Administrative Agent shall notify the Banks of the Effective Date promptly
after the occurrence thereof, which notice shall be accompanied, if
applicable, with a copy of Schedule I revised to give effect to any deemed
amendments thereto made pursuant to Section 6.1(a).
6.2 Conditions to Each Loan. The obligation of each Bank to make
any Loan on or after the Effective Date to be made by it hereunder is subject
to the satisfaction (or waiver by the Required U.S. Banks (in the case of U.S.
R/C Loans) or the Required C$ Banks (in the case of C$ Loans)) of the
following conditions precedent:
(a) Representations and Warranties. The representations and
warranties made by CFC and, in the case of Canadian Loans, CCCL, shall
be correct in all material respects on and as of the Borrowing Date for
such Loan as if made on and as of such date, except for any such
representations or warranties which relate solely to an earlier date.
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such Borrowing Date or after
giving effect to the Loans to be made on such Borrowing Date.
Each borrowing by either Facility Borrower hereunder shall constitute a
representation and warranty by such Facility Borrower as of the date of each
such borrowing that the conditions in this Section 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
Each of CFC and, to the extent applicable, CCCL hereby covenants
and agrees that so long as the Commitments remain in effect, any Loan remains
outstanding and unpaid or any other amount is owing to any Bank or either
Agent hereunder:
<PAGE>
37
7.1 Financial Statements, etc. (a) Each Facility Borrower will
furnish (a) in the case of CFC, to the Administrative Agent and each Bank or
(b) in the case of CCCL, to the Canadian Administrative Agent and each C$
Bank:
(i) as soon as available and in any event within 60 days after
the end of the first, second and third quarterly accounting periods
in each fiscal year of such Facility Borrower, copies of financial
statements of such Facility Borrower and its Subsidiaries
consisting of, at a minimum, balance sheets of such Facility
Borrower and its Subsidiaries on a consolidated basis as of the end
of such quarterly accounting period, and related statements of net
earnings and cash flows for the portion of such fiscal year ended
with the last day of such quarterly accounting period, all in
reasonable detail and prepared and certified (subject to year-end
audit adjustments) by a Responsible Officer (which certification
may be included in the certificate referred to in Section
7.1(a)(iii)) and stating in comparative form the respective figures
for the corresponding date and period in the previous fiscal year;
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of such Facility Borrower, copies
of financial statements of such Facility Borrower and its
Subsidiaries consisting of, at a minimum, balance sheets of such
Facility Borrower and its Subsidiaries on a consolidated basis as
of the end of such fiscal year, and related statements of net
earnings and cash flows for such fiscal year, all in reasonable
detail and certified by independent public accountants of
nationally recognized standing selected by such Facility Borrower
and stating in comparative form the respective figures as of the
end of and for the previous fiscal year;
(iii) concurrently with the financial statements for each
quarterly accounting period and for each fiscal year of such
Facility Borrower furnished pursuant to paragraphs (a)(i) and
(a)(ii) of this Section 7.1, a certificate of a Responsible Officer
stating that, based on an examination which in the opinion of the
signer is sufficient to enable him to make an informed statement,
such Facility Borrower and its Subsidiaries have performed and
observed all of, and neither such Facility Borrower nor any of its
Subsidiaries is in default in the performance or observance of any
of, the terms, covenants, agreements and conditions of this
Agreement or, if such Facility Borrower or any of its Subsidiaries
shall be in default, specifying all such defaults and the nature
thereof, of which the signer of such certificate may have
knowledge; and
(iv) such other information relating to the affairs of such
Facility Borrower and its Subsidiaries as any Bank through the
Administrative Agent may from time to time reasonably request.
(b) (i) Upon written request by any Bank through the Administrative
Agent, each Facility Borrower will furnish to such Bank copies of all such
reports of the type a publicly held corporation would generally make available
to its stockholders as such Facility Borrower shall make available to its
parent company and (ii) upon written request of the Administrative Agent, each
Facility Borrower will furnish to the Administrative Agent all regular and
periodic reports which CFC or any Subsidiary may be required to file with the
Securities and Exchange Commission, the Ontario Securities Commission or any
similar or corresponding government department, commission, board, bureau or
agency, domestic or foreign, or with any securities exchange.
<PAGE>
38
7.2 Maintenance of Existence. Each Facility Borrower will preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary
or desirable in the normal conduct of its business, except for rights,
privileges and franchises the loss of which would not in the aggregate in the
reasonable business judgment of such Facility Borrower have a material adverse
effect on the business, operations, property or financial or other condition
of such Facility Borrower and its Subsidiaries taken as a whole, and except as
otherwise permitted by Section 8.3.
7.3 Notices. Each Facility Borrower will promptly give notice to
the Administrative Agent (which shall notify the Banks) of (a) the occurrence
of any Default or Event of Default (accompanied by a certificate of a
Responsible Officer specifying the nature of such event, the period of
existence thereof, and the action that the relevant Facility Borrower proposes
to take with respect thereto) and (b) the execution and delivery of any
documentation with respect to any Material Indebtedness of CFC or any
Significant Subsidiary if such documentation includes a financial covenant
which is more onerous than, or materially different from, the financial
covenant contained in Section 8.1, accompanied by a complete and correct
transcription of the text of such financial covenant. The delivery of any such
notice shall be deemed to automatically amend Schedule II to reflect the
existence of such financial covenant and the text thereof.
SECTION 8. NEGATIVE COVENANTS
Each of CFC and, to the extent applicable, CCCL, hereby covenants
and agrees that so long as the Commitments remain in effect, any Loan remains
outstanding and unpaid or any other amount is owing to any Bank or either
Agent hereunder:
8.1 Debt to Equity Ratio. CFC will not permit the ratio of Debt on
the last day of any fiscal quarter of CFC to Equity on such day to be greater
than 11.0 to 1.0.
8.2 Limitation on Transactions with Affiliates. CFC will not, and
will not permit any Subsidiary to, engage in any transaction with an Affiliate
(other than CFC and its Subsidiaries) on terms substantially less favorable to
CFC or such Subsidiary than would be obtainable at the time in comparable
transactions of CFC or such Subsidiary with Persons not Affiliates. As used in
this Section 8.2, after the occurrence of a Change of Control, the term
"Affiliate" shall be deemed to include any CFC Affiliate.
8.3 Limitation on Fundamental Change. (a) CFC will not (i) merge or
consolidate with any other Person (unless (x) CFC shall be the continuing
corporation and (y) immediately before and immediately after giving effect to
such merger or consolidation, no Default or Event of Default shall have
occurred and be continuing) or (ii) sell or convey all or substantially all of
its assets to any Person.
(b) CCCL will not (i) amalgamate with any other Person (unless (x)
the amalgamated Person shall, if requested by the Administrative Agent,
execute and deliver a ratification of any outstanding C$ Loans and a
confirmation of its assumption of the CCCL Obligations and (y) immediately
before and immediately after giving effect to such amalgamation, no Default or
Event of Default shall have occurred and be continuing) or (ii) sell or convey
all or substantially all of its assets to any Person (other than CFC).
<PAGE>
39
8.4 Limitation on Liens. (a) CFC will not, and will not permit any
Finance Subsidiary to, create, assume or incur, or suffer to be created,
assumed or incurred or to exist, any Lien in respect of any property of any
character of CFC or such Finance Subsidiary, whether heretofore or hereafter
acquired; excluding, however, from the operation of this covenant:
(i) any deposit of assets of CFC or any of its Finance Subsidiaries
with any surety company or clerk of any court, or in escrow, as
collateral in connection with, or in lieu of, any bond on appeal by CFC
or any of its Finance Subsidiaries, from any judgment or decree, or in
connection with other proceedings or actions at law or in equity by or
against CFC or any of its Finance Subsidiaries;
(ii) Liens created by any Finance Subsidiary in favor of CFC or a
wholly-owned Subsidiary securing indebtedness of such Finance Subsidiary
to CFC or a wholly-owned Subsidiary (which Liens cannot be transferred
except to CFC or to another wholly-owned Subsidiary);
(iii) any deposits to secure public or statutory obligations of CFC
or any of its Finance Subsidiaries, other than any such deposit made as
a result of or in connection with the occurrence of any of the events
described in clause (i), (ii), (iii) or (iv) of Section 9(g);
(iv) any purchase money Liens in respect of fixed assets or other
physical or real properties heretofore or hereafter acquired by CFC or
any of its Finance Subsidiaries, or any Liens existing in respect of
such property at the time of acquisition thereof; provided, however,
that no such Lien shall extend to or cover any other property of CFC or
such Finance Subsidiary, as the case may be;
(v) any Liens which are (A) in respect of fixed assets or other
physical properties of a corporation which is not a Finance Subsidiary
as of the date hereof, and (B) in existence at the time such corporation
becomes a Finance Subsidiary;
(vi) the extension, renewal or replacement of any Lien permitted by
paragraphs (i) through (v) above in respect of the same property
theretofore subject thereto or the extension, renewal or replacement
(without increase of principal amount) of the indebtedness secured
thereby;
(vii) Liens for taxes not yet due or which are being contested in
good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of CFC or such Finance
Subsidiary, as the case may be, in accordance with GAAP;
(viii) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business (A) which are not overdue for a period of more than
60 days or (B) which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of CFC or such Finance Subsidiary, as the case
may be, in accordance with GAAP;
(ix) easements, rights-of-way, zoning and similar restrictions and
other similar encumbrances or title defects incurred in the ordinary
course of business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value
of the property subject thereto or interfere with the ordinary conduct
of the business of CFC or its Finance Subsidiaries;
<PAGE>
40
(x) any attachment or judgment lien, unless the judgment it secures
shall not, within 30 days after the entry thereof, have been discharged
or execution thereof stayed pending appeal, or shall not have been
discharged within 30 days after the expiration of any such stay;
(xi) Liens granted on assets in connection with leveraged leases
and project financings entered into in the ordinary course of the
Finance Business;
(xii) Liens granted in connection with the cash collateralization
of Bankers' Acceptances pursuant hereto or in connection with the cash
collateralization of bankers' acceptances pursuant to the Long Term
Revolving Credit Agreement;
(xiii) Liens on receivables payable in foreign currencies (other
than C$) to secure borrowings in foreign countries (other than Canada);
and
(xiv) Liens to secure Indebtedness and other obligations of CFC or
any of its Finance Subsidiaries not otherwise permitted by this Section
8.4, but only to the extent that the aggregate amount of Indebtedness
and other obligations secured thereby does not at any time exceed
$100,000,000 (or the equivalent thereof in any other currency).
(b) CFC will not permit any Domestic Subsidiary that is not a
Finance Subsidiary to create, assume or incur, or suffer to be created,
assumed or incurred or to exist, any Lien in respect of any property of any
character of such Domestic Subsidiary, whether heretofore or hereafter
acquired, excluding, however, from the operation of this covenant:
(i) Liens on property of such Domestic Subsidiary that would be
permitted under Section 8.4(a) if such Domestic Subsidiary were a
Finance Subsidiary;
(ii) Liens on property of such Domestic Subsidiary that are
incurred in the ordinary course of the Finance Business or the Real
Estate Business of such Domestic Subsidiary; and
(iii) Liens on any property of such Domestic Subsidiary if such
Domestic Subsidiary is a "single purpose" entity formed for the purpose
of holding title to such property and engages in no activities other
than those related to holding title to such property.
8.5 Additional Covenants. At any time after the occurrence of a
Change of Control:
(a) Limitation on Dividends, Investments, etc. CFC shall not
(i) declare or pay any dividend (other than dividends payable solely in
common stock of CFC) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any shares
of any class of Capital Stock of CFC, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of
CFC or any Subsidiary or (ii) make, or permit any Subsidiary to make,
any investment, loan, advance, capital contribution or extension of
credit (including by way of guaranty in favor of third party creditors),
whether in cash or property or otherwise, in or to or for the benefit of
any CFC Affiliate, except that (x) so long as no Event of Default has
occurred and is continuing (or would occur after giving effect thereto),
CFC may declare and pay any scheduled dividend on, and make redemptions
of, preferred stock issued by CFC to any Person
<PAGE>
41
(other than a CFC Affiliate) to the extent permitted by the terms
thereof and (y) CFC and its Subsidiaries may make investments, loans,
advances and extensions of credit in or to or for the benefit of any CFC
Affiliate in the ordinary course of its Finance Business consistent with
historical practices (in each case determined as of the date of such
Change of Control) and in accordance with Section 8.2.
(b) Minimum Equity. CFC shall not permit Equity (determined
without giving effect to any redemption of preferred stock of CFC made
pursuant to Section 8.5(a) after the date of such Change of Control) to
be less than an amount equal to Equity as of the day immediately
preceding the occurrence of such Change of Control minus $250,000,000.
(c) Limitation on Amendments to Intercompany Agreements; CFC
Affiliate Transactions. CFC shall not, and shall not permit any
Subsidiary to, (i) amend or modify, or agree to amend or modify, any of
the provisions of any Intercompany Agreement in a manner materially
adverse to the interests of either (x) CFC and its Subsidiaries taken as
a whole or (y) the Banks, or (ii) enter into, or agree to enter into,
any Intercompany Agreement which is materially adverse to the interests
of either (x) CFC and its Subsidiaries taken as a whole or (y) the
Banks. As used in this Section 8.5(c), "Intercompany Agreement" means
any agreement between CFC or any Subsidiary and any CFC Affiliate, any
instrument issued by CFC or any Subsidiary to any CFC Affiliate and any
instrument issued by any CFC Affiliate to CFC or any Subsidiary.
(d) Limitation on Lines of Business. CFC shall not, and shall
not permit any Subsidiary to, engage in any business other than the
Finance Business, the Finance-Related Insurance Business and the other
businesses in which CFC and its Subsidiaries are engaged as of the date
of such Change of Control, and other than businesses in which CFC or any
of its Subsidiaries may be involved in connection with or related to any
workout, liquidation, foreclosure or other realization on or disposition
of assets in which it has a security interest, or any other exercise of
rights or remedies pursuant to a workout in connection with any
financing (whether equity or debt) provided by CFC or any of its
Subsidiaries to any Person.
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) CFC or CCCL shall fail to pay any principal of any Loan when
due in accordance with the terms hereof; or to pay any interest on any
Loan or any fee or other amount owing hereunder within five Business
Days after any such interest, fee or other amount becomes due in
accordance with the terms hereof; or
(b) any representation or warranty made by either Facility Borrower
herein, or deemed made by either Facility Borrower pursuant to Section 5
or 6, or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on
or as of the date made, or deemed made; or
(c) either Facility Borrower shall default in the observance or
performance of any agreement contained in Section 8.1, 8.3 or 8.5; or
<PAGE>
42
(d) either Facility Borrower shall default in the observance or
performance of any other agreement, covenant or term contained in this
Agreement (including any failure to make any payment required hereunder
other than as described in paragraph (a) above), and such default shall
continue unremedied for a period of 30 days after receipt by such
Facility Borrower of notice of such default from the Administrative
Agent; or
(e) CFC or any Significant Subsidiary shall default in any payment
of $25,000,000 (or the equivalent thereof in any other currency) or more
of principal of or interest on any Indebtedness or in the payment of
$25,000,000 (or the equivalent thereof in any other currency) or more on
account of any guarantee in respect of Indebtedness, beyond the period
of grace, if any, provided in the instrument or agreement under which
such Indebtedness or guarantee was created; or
(f) (i) CFC or any of its Significant Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it
a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its assets, or CFC or any of its Significant
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against CFC or any of its
Significant Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of
an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against CFC or any of its Significant
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) CFC or any of its Significant Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii) or (iii) above; or (v) CFC or any of its Significant
Subsidiaries shall admit in writing its inability to pay its debts
generally as they become due; or
(g) (i) any Person shall engage in any Prohibited Transaction
involving any Plan, (ii) any Accumulated Funding Deficiency, whether or
not waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have
a trustee appointed, or a trustee shall be appointed, to administer or
to terminate, any Single Employer Plan, which Reportable Event or
institution of proceedings is, in the reasonable opinion of the Required
Banks, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, and, in the case of a Reportable Event, the
continuance of such Reportable Event unremedied for ten days after
notice of such Reportable Event pursuant to Section 4043(a), (c) or (d)
of ERISA is given or the continuance of such proceedings for ten days
after commencement thereof, as the case may be, (iv) any Single Employer
Plan shall terminate for purposes of Title IV of ERISA, or (v) any other
event or condition shall occur or exist with respect to a Single
Employer Plan; and in each case in clauses (i) through (v) above, the
Administrative Agent shall have notified CFC that, in the opinion of the
Required Banks, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to subject
CFC or any of its Subsidiaries to any tax, penalty or other
<PAGE>
43
liabilities in the aggregate material in relation to the business,
operations, property or financial or other condition of CFC and its
Subsidiaries taken as a whole; or
(h) one or more final judgments or decrees shall be entered against
CFC or any of its Significant Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $100,000,000 (or
the equivalent thereof in any other currency) or more shall have been
unpaid for a period of 60 days and shall not have been stayed; or
(i) Chrysler shall at any time fail to own at least 51% of the
issued and outstanding shares of the common stock of CFC; or
(j) CFC or any of its Significant Subsidiaries shall default in the
observance or performance of any financial covenant contained in any
instrument or agreement evidencing, securing or relating to any of its
Material Indebtedness, the effect of which default is to cause, or to
permit the holder or holders of such Material Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause, such Material
Indebtedness to become due prior to its stated maturity;
then, and in any such event, (a) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to CFC,
automatically the Commitments shall immediately terminate and the Loans
(including the face amount of all Bankers' Acceptances accepted by any C$
Bank), with accrued interest thereon, and all other amounts owing under this
Agreement shall immediately become due and payable, and (b) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Banks, the Administrative Agent
may, or upon the request of the Required Banks, the Administrative Agent
shall, by notice to CFC, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the
consent of the Required Banks, the Administrative Agent may, or upon the
request of the Required Banks, the Administrative Agent shall, by notice of
default to CFC, declare the Loans (including the face amount of all Bankers'
Acceptances accepted by any C$ Bank), with accrued interest thereon, and all
other amounts owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable. Except as
expressly provided above in this Section 9, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
SECTION 10. THE AGENTS
10.1 Appointment. Each Bank hereby irrevocably designates and
appoints the Administrative Agent as the administrative agent of such Bank
under this Agreement, and each Bank hereby irrevocably authorizes the
Administrative Agent as administrative agent for such Bank to take such action
on its behalf under the provisions of this Agreement and to exercise such
powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement, together with such other
powers as are reasonably incidental thereto. Each C$ Bank hereby irrevocably
designates and appoints the Canadian Administrative Agent as the Canadian
administrative agent of such Bank under this Agreement, and each C$ Bank
hereby irrevocably authorizes the Canadian Administrative Agent as Canadian
administrative agent for such Bank to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Canadian Administrative Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, neither Agent shall have any duties or
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44
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against either Agent.
10.2 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. Without limiting the foregoing, the Administrative Agent may appoint
CASC as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to CFC and distribution of funds
to the Banks and to perform such other related functions of the Administrative
Agent hereunder as are reasonably incidental to such functions.
10.3 Exculpatory Provisions. Neither Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates (including, without limitation, CASC) shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct), or (b) responsible in any manner to any of
the Banks for any recitals, statements, representations or warranties made by
either Facility Borrower or any Subsidiary or any officer thereof contained in
this Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by either Agent under or in
connection with, this Agreement or for any failure of either Facility Borrower
or any Subsidiary to perform its obligations hereunder or thereunder. Neither
Agent shall be under any obligation to any Bank to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records
of either Facility Borrower or any Subsidiary.
10.4 Reliance by Agents and CASC. Each Agent and CASC shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile transmission, telex or teletype message, statement, order
or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to CFC), independent accountants and other experts selected by the relevant
Agent. Each Agent and CASC may deem and treat the Bank specified in the
relevant Register with respect to any amount owing hereunder as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent in
accordance with Section 12.7. Each Agent shall be fully justified in failing
or refusing to take any action under this Agreement unless it shall first
receive such advice or concurrence of the Required Banks (or, if so specified
in this Agreement, all of the Banks) as it deems appropriate or it shall first
be indemnified to its satisfaction by the Banks against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. Each Agent shall, in all cases, be fully protected in
acting, or in refraining from acting, under this Agreement in accordance with
a request of the Required Banks (or, if so specified in this Agreement, all of
the Banks), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks and all future holders of the
obligations owing by the Facility Borrowers hereunder.
10.5 Notice of Default. Neither Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Bank or either Facility
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that either Agent receives
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45
such a notice, such Agent shall give notice thereof to the Banks, and, if such
notice is received from a Bank, such Agent shall give notice thereof to each
Facility Borrower and each other Bank. Subject to the proviso contained in
Section 12.1, the Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Banks (or, if so specified in this Agreement, all of the Banks);
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests
of the Banks.
10.6 Non-Reliance on Agents, Other Banks and CASC. Each Bank
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates
(including, without limitation, CASC) has made any representations or
warranties to it and that no act by either Agent hereafter taken, including
any review of the affairs of either Facility Borrower, shall be deemed to
constitute any representation or warranty by either Agent to any Bank. Each
Bank represents to each Agent and CASC that it has, independently and without
reliance upon either Agent, any other Bank or CASC, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Facility Borrowers and made its
own decision to make its Loans under, and enter into, this Agreement. Each
Bank also represents that it will, independently and without reliance upon
either Agent, any other Bank or CASC, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Facility Borrowers. Except for notices, reports
and other documents expressly required to be furnished to the Banks by the
relevant Agent hereunder, neither Agent shall have any duty or responsibility
to provide any Bank with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of either Facility Borrower which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification. The Banks (or, in the case of the indemnity
in favor of the Canadian Administrative Agent, the C$ Banks) agree to
indemnify each Agent and CASC (to the extent not reimbursed by either Facility
Borrower and without limiting the obligation of each Facility Borrower to do
so), ratably according to the respective amounts of their respective
Commitment Percentages (or, in the case of the indemnity in favor of the
Canadian Administrative Agent, the C$ Banks' respective C$ Commitment
Percentages) in effect on the date on which indemnification is sought under
this Section 10.7 (or, if indemnification is sought after the date upon which
the Commitments shall have terminated, ratably in accordance with such
Commitment Percentages (or C$ Commitment Percentages) immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against such Agent or CASC in any way relating to or
arising out of this Agreement or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Agent or CASC under or in
connection with any of the foregoing, provided that no Bank shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's or CASC's, as the case may be, gross
negligence or willful misconduct. The agreements in this Section 10.7 shall
survive the payment of the Loans and all other amounts payable hereunder.
<PAGE>
46
10.8 Agents in their Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with each Facility Borrower as though such Agent was not an
Agent hereunder. With respect to its Loans made or renewed by it, each Agent
shall have the same rights and powers under this Agreement as any Bank and may
exercise the same as though it were not an Agent, and the terms "Bank" and
"Banks" shall include such Agent in its individual capacity.
10.9 Successor Agents. Each Agent may resign as Agent upon 10 days'
notice to the Banks and the Facility Borrowers, and may be removed at any time
with or without cause by the Required Banks. If an Agent shall resign or be
removed as Agent under this Agreement, then either (a) the Required Banks
shall appoint from among the Banks a successor administrative agent or
Canadian administrative agent, as applicable, which successor agent shall be
approved by CFC, or (b) if a successor agent shall not have been so appointed
and approved within the 10-day period following such Agent's notice to the
Banks or its removal as Agent, such Agent shall then, with the consent of CFC,
appoint a successor agent who shall serve as Administrative Agent or Canadian
Administrative Agent, as applicable, until such time, if any, as the Required
Banks appoint, and CFC approves, a successor agent as provided in (a) above.
Upon its appointment pursuant to either clause (a) or (b) above, such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent or the Canadian Administrative Agent, as applicable, and
the terms "Administrative Agent", "Canadian Administrative Agent" and "Agent",
as applicable, shall mean such successor agent effective upon its appointment,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or
any of the parties to this Agreement or any holders of the obligations owing
by the Facility Borrowers hereunder. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
10.10 The Managing Agents. No Managing Agent in its capacity as
such shall have any rights, duties or responsibilities hereunder, or any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against any Managing Agent in its capacity as
Managing Agent.
SECTION 11. GUARANTEE
11.1 Guarantee. In order to induce the Agents and the Banks to
execute and deliver this Agreement and to make or maintain the C$ Loans, and
in consideration thereof, CFC hereby unconditionally and irrevocably
guarantees, as primary obligor and not merely as surety, to the Administrative
Agent, for the ratable benefit of the Agents and the Banks, the prompt and
complete payment and performance by CCCL when due (whether at stated maturity,
by acceleration or otherwise) of the CCCL Obligations. The guarantee contained
in this Section 11, subject to Section 11.5, shall remain in full force and
effect until the CCCL Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto CCCL may be
free from any CCCL Obligations.
CFC agrees that whenever, at any time, or from time to time, it
shall make any payment to either Agent or any Bank on account of its liability
under this Section 11, it will notify the Administrative Agent (and, in the
cases of payments to it, the Canadian Administrative Agent) and such Bank in
writing that such payment is made under the guarantee contained in this
Section 11 for such purpose. No payment or payments made by CCCL or any other
Person or received or collected by either Agent or any Bank from CCCL or any
other Person by virtue of any action or proceeding or any setoff or
appropriation or application, at any time or from time to time, in reduction
of or in
<PAGE>
47
payment of the CCCL Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of CFC under this Section 11 which,
notwithstanding any such payment or payments, shall remain liable for the
unpaid and outstanding CCCL Obligations until, subject to Section 11.5, the
CCCL Obligations are paid in full and the Commitments are terminated.
11.2 No Subrogation, Contribution, Reimbursement or Indemnity.
Notwithstanding anything to the contrary in this Section 11, CFC hereby
irrevocably waives (a) all rights which may have arisen in connection with the
guarantee contained in this Section 11 to be subrogated to any of the rights
(whether contractual, under the Bankruptcy Code, including Section 509
thereof, under common law or otherwise) of either Agent or any Bank against
CCCL or against either Agent or any Bank for the payment of the CCCL
Obligations and (b) all contractual, common law, statutory and other rights of
reimbursement, contribution, exoneration or indemnity (or any similar right)
from or against CCCL or any other Person which may have arisen in connection
with the guarantee of the CCCL Obligations contained in this Section 11, in
each case until all CCCL Obligations have been paid in full. So long as the
CCCL Obligations remain outstanding, if any amount shall be paid by or on
behalf of CCCL or any other Person to CFC on account of any of the rights
waived in this Section 11.2, such amount shall be held by CFC in trust,
segregated from other funds of CFC, and shall, forthwith upon receipt by CFC,
be turned over to the Administrative Agent in the exact form received by CFC
(duly indorsed by CFC to the Administrative Agent, if required), to be applied
against the CCCL Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine. The provisions of this Section 11.2
shall survive the term of the guarantee contained in this Section 11 and the
payment in full of the CCCL Obligations and the termination of the
Commitments.
11.3 Amendments, etc. with respect to the CCCL Obligations. CFC
shall remain obligated under this Section 11 notwithstanding that, without any
reservation of rights against CFC, and without notice to or further assent by
CFC, any demand for payment of or reduction in the principal amount of any of
the CCCL Obligations made by either Agent or any Bank may be rescinded by such
Agent or such Bank, and any of the CCCL Obligations continued, and the CCCL
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with
respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by either Agent or any Bank, and this Agreement and any other
documents executed and delivered in connection herewith may be amended,
modified, supplemented or terminated, in whole or in part, as may be deemed
advisable from time to time, and any collateral security, guarantee or right
of offset at any time held by either Agent or any Bank for the payment of the
CCCL Obligations may be sold, exchanged, waived, surrendered or released. No
Agent or Bank shall have any obligation to protect, secure, perfect or insure
any lien at any time held by it as security for the CCCL Obligations or for
the guarantee contained in this Section 11 or any property subject thereto.
11.4 Guarantee Absolute and Unconditional. CFC waives any and all
notice of the creation, renewal, extension or accrual of any of the CCCL
Obligations and notice of or proof of reliance by either Agent or any Bank
upon the guarantee contained in this Section 11 or acceptance of the guarantee
contained in this Section 11; the CCCL Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon the guarantee contained
in this Section 11; and all dealings between CFC or CCCL, on the one hand, and
the Agents and the Banks, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon the guarantee
contained in this Section 11. CFC waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon CFC or CCCL
with respect to the CCCL Obligations. The guarantee contained in this Section
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48
11 shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity or enforceability of this
Agreement, any of the CCCL Obligations or any collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by either Agent or any Bank, (b) the legality under applicable
Requirements of Law of repayment by CCCL of any CCCL Obligations or the
adoption of any Requirement of Law purporting to render any CCCL Obligations
null and void, (c) any defense, setoff or counterclaim (other than a defense
of payment or performance by CCCL) which may at any time be available to or be
asserted by CFC or CCCL against either Agent or any Bank, or (d) any other
circumstance whatsoever (with or without notice to or knowledge of CFC or
CCCL) which constitutes, or might be construed to constitute, an equitable or
legal discharge of CCCL for any CCCL Obligations, or of CFC under the
guarantee contained in this Section 11, in bankruptcy or in any other
instance. When either Agent or any Bank is pursuing its rights and remedies
under this Section 11 against CFC, such Agent or Bank may, but shall be under
no obligation to, pursue such rights and remedies as it may have against any
CCCL or any other Person or against any collateral security or guarantee for
the CCCL Obligations or any right of offset with respect thereto, and any
failure by either Agent or any Bank to pursue such other rights or remedies or
to collect any payments from CCCL or any such other Person or to realize upon
any such collateral security or guarantee or to exercise any such right of
offset, or any release of CCCL or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve CFC of
any liability under this Section 11, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Agents and the Banks against CFC.
11.5 Reinstatement. The guarantee contained in this Section 11
shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the CCCL Obligations is
rescinded or must otherwise be restored or returned by either Agent or any
Bank upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of CCCL or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
CCCL or any substantial part of its property, or otherwise, all as though such
payments had not been made.
11.6 Payments. (a) CFC hereby agrees that any payments in respect
of the CCCL Obligations pursuant to this Section 11 will be paid without
setoff or counterclaim in C$ to (unless otherwise specified by the
Administrative Agent) the Canadian Administrative Agent at the office of the
Canadian Administrative Agent specified in Section 12.2.
(b) In the event that any law, regulation, treaty or directive
(whether or not in effect on the date hereof), shall require any Taxes to be
withheld or deducted from any amount payable to any Bank under the guarantee
contained in this Section 11, upon notice by such Bank to CFC (with a copy to
the Administrative Agent) to the effect that as a result of such law, rule,
regulation, treaty or directive, Taxes are being withheld or deducted from
amounts payable to such Bank under the guarantee contained in this Section 11,
CFC will pay to such Bank (or, if applicable, the relevant Agent or any other
agent acting on such Bank's behalf) additional amounts (in the relevant
currency) so that such additional amounts, together with amounts otherwise
payable under the guarantee contained in this Section 11, will yield to such
Bank, after deduction from such increased amount of all Taxes required to be
withheld or deducted therefrom, the amount stated to be payable under the
guarantee contained in this Section 11. If CFC fails to pay any Taxes when due
following notification by any Bank as provided above, CFC shall indemnify such
Bank for any incremental taxes, interest or penalties that may become payable
by any Bank as a result of any such failure by CFC to make such payment.
Within 30 days after the payment by CFC of any Taxes withheld or deducted from
any amount payable to any Bank under the guarantee contained in this Section
11, CFC will furnish to
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49
such Bank (with a copy to the Administrative Agent), the original or a
certified copy of a receipt evidencing payment thereof.
11.7 Judgments Relating to Guarantee. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due under
the guarantee contained in this Section 11 in one currency into another
currency, CFC agrees, to the fullest extent that it may effectively do so,
that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the relevant Bank (or
agent acting on its behalf) could purchase the first currency with such other
currency for the first currency on the Banking Day immediately preceding the
day on which final judgment is given.
(b) The obligations of CFC in respect of any sum due under the
guarantee contained in this Section 11 shall, notwithstanding any judgment in
a currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with this Section 11 (the "Agreement Currency"), be
discharged only to the extent that, on the Banking Day following receipt by
any Bank (or agent acting on its behalf) (the "Applicable Creditor") of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor
may in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of
the Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, CFC agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss, provided, that if the amount of the Agreement
Currency so purchased exceeds the sum originally due to the Applicable
Creditor, the Applicable Creditor agrees to remit such excess to CFC. The
obligations of CFC contained in this Section 11.7 shall survive the
termination of the guarantee contained in this Section 11 and the payment of
all amounts owing hereunder.
11.8 Independent Obligations. The obligations of CFC under the
guarantee contained in this Section 11 are independent of the obligations of
CCCL, and a separate action or actions may be brought and prosecuted against
CFC whether or not CCCL be joined in any such action or actions. CFC waives,
to the full extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof.
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. With the written consent of the
Required Banks, the Administrative Agent and the Facility Borrowers may, from
time to time, enter into written amendments, supplements or modifications
hereto for the purpose of adding any provisions to this Agreement or changing
in any manner the rights of the Banks or of either Facility Borrower
hereunder, and with the written consent of the Required Banks the
Administrative Agent on behalf of the Banks may execute and deliver to the
Facility Borrowers a written instrument waiving, on such terms and conditions
as the Administrative Agent may specify (with such consent) in such
instrument, any of the requirements of this Agreement or any Default or Event
of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (a) extend the maturity of
any Loan, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof, or reduce the amount or
extend the time of payment of any Facility Fee or Acceptance Fee hereunder, or
change the amount or terms of any Bank's Commitment, or amend, modify or waive
any provision of this Section 12.1 or reduce the percentages specified in the
definition of Required Banks, Required U.S. Banks or Required Canadian Banks,
or consent to the assignment or transfer by either Facility Borrower of any of
its rights and obligations under this
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50
Agreement or amend, modify or waive the provisions of Section 12.8, in each
case without the prior written consent of each Bank directly affected thereby;
(b) extend the Termination Date without the prior written consent of each
Bank; or (c) release CFC from its obligations under the guarantee contained in
Section 11 without the prior written consent of each C$ Bank; or (d) amend,
modify or waive any provision of Section 10 without the prior written consent
of each Agent directly affected thereby; or (e) amend, modify or waive any
provision of Section 10.10 without the prior written consent of each Managing
Agent. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Banks and shall be binding upon each
Facility Borrower, the Banks, each Agent and all future holders of the
obligations owing by the Facility Borrowers hereunder. In the case of any
waiver, each Facility Borrower, the Banks and each Agent shall be restored to
their former position and rights hereunder, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. The Administrative Agent shall give the
Canadian Administrative Agent prompt written notice of any waiver, amendment,
supplement or modification entered into pursuant to this Section 12.1.
12.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing or by facsimile
transmission or telex and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand or when
deposited in the mail, first class or air postage prepaid, or, in the case of
facsimile transmission, when transmitted, receipt acknowledged, or, in the
case of telex notice, when sent, answerback received, addressed as follows in
the case of the Facility Borrowers, the Canadian Administrative Agent and the
Administrative Agent, and as set forth in its Addendum in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the obligations owing
by the Facility Borrowers hereunder:
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51
CFC: Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Vice President and Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Facsimile: 810-948-3801
CCCL: Chrysler Credit Canada Ltd.
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Vice President and Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Facsimile: 810-948-3801
The Administrative
Agent: Chemical Bank:
270 Park Avenue
New York, New York 10017
Attention: Rosemary Bradley
Facsimile: 212-972-9854
With copies to: Chemical Bank Agency Services
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Sandra Miklave
Telex: 353-006
Answerback: ABSC NYK
Facsimile: 212-622-0002
The Canadian
Administrative
Agent: Royal Bank of Canada
Loan Structuring and Syndications
Royal Bank Plaza, South Tower
200 Bay Street
Toronto, Ontario
Canada M5J 2J5
Attention: Manager, Business Operations
Facsimile: 416-974-2407
provided that any notice, request or demand to or upon an Agent pursuant to
Section 2.2, 2.3, 3.2, 3.3, 3.4, 4.6 or 4.7 shall not be effective until
received.
12.3 Clearing Accounts. (a) Each US$ Bank irrevocably authorizes
the Administrative Agent and CASC to cause such Bank's Clearing Account to be
debited as contemplated in Section 2.2 and to cause to be created an overdraft
in such account if the balance in such Bank's Clearing Account on a particular
Borrowing Date is less than the amount of the U.S. Loan to be made by such
Bank on such day. In addition each US$ Bank irrevocably authorizes the
Administrative Agent and CASC to cause such Bank's Clearing Account to be
credited, as contemplated in Section
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52
4.8(a), with its ratable share of payments received by the Administrative
Agent from CFC. The Clearing Account of each US$ Bank shall be maintained at
its own expense and free of charge to the Administrative Agent, CASC and CFC.
(b) The Administrative Agent may at any time in its sole
discretion, upon prior notice to CFC and the US$ Banks, discontinue the use of
ACH procedures in connection with U.S. R/C Loans made pursuant hereto, and the
US$ Banks shall thereafter fund each U.S. Loan required to be made by them
hereunder by making available the amount thereof to the Administrative Agent
for the account of CFC at the office of the Administrative Agent set forth in
Section 12.2 in funds immediately available to the Administrative Agent.
12.4 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of either Agent or any Bank, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or of the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
12.5 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement.
12.6 Payment of Expenses. Each of CFC and, as applicable, CCCL,
agrees:
(a) to pay or reimburse the Administrative Agent for all reasonable
out-of-pocket costs and expenses incurred in connection with the
preparation and execution of, and any amendment, supplement or
modification to or waiver under, this Agreement and any other documents
prepared in connection herewith, and the consummation of the
transactions contemplated hereby and the administration of this
Agreement, including, without limitation, the reasonable fees and
disbursements of Simpson Thacher & Bartlett, special counsel to the
Administrative Agent and the Banks;
(b) to pay or reimburse each Bank and each Agent for all costs and
expenses (other than legal fees and disbursements) incurred in
connection with the enforcement or preservation of any rights under this
Agreement and any such other documents, and the reasonable fees and
disbursements of one firm of special counsel in each of the United
States and Canada to the Agents and the Banks; and
(c) to (i) indemnify each C$ Bank from and against any loss or
expense which such C$ Bank may sustain or incur as a consequence of the
imposition or payment of any Taxes or Other Taxes imposed under the laws
of Canada or any province thereof in respect of any Facility Fee payable
to such C$ Bank's Related US$ Bank, except that no C$ Bank may request
indemnification for any Taxes or Other Taxes under this clause (i) to
the extent that (x) such Taxes or Other Taxes would have been avoided or
reduced by such Bank's properly claiming the benefit of any exemption
from or reduction of such Taxes or Other Taxes (whether provided by
statute, treaty or otherwise) or by such Bank's taking any other action
which in its judgment is reasonable to avoid or reduce such Taxes or
Other Taxes, provided that such Bank shall not be required to (1) take
any action which in the reasonable judgment of such Bank could directly
or indirectly result in any increased cost or expense or in any loss of
opportunity to such Bank unless the relevant Facility Borrower shall
have provided to such
<PAGE>
53
Bank indemnity or reimbursement therefor in form and substance
reasonably satisfactory to such Bank or (2) claim or apply any tax
credit against such Taxes or Other Taxes or (y) in the case of Other
Taxes, such Other Taxes result from the voluntary allocation by such
Related US$ Bank of any portion of such Facility Fee to such C$ Bank;
(ii) indemnify each Bank from and against liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements (other than legal fees and disbursements) of any kind
whatsoever (and, with respect to any proceeding or related proceedings,
the reasonable fees and disbursements of one firm of special counsel to
the relevant Banks in connection with such proceeding(s)) which may at
any time (including, without limitation, at any time following the
payment of the Loans) be imposed on, incurred by or asserted against
such Bank in any way relating to or arising out of this Agreement or any
other documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by such
Bank under or in connection with any of the foregoing, provided that no
Borrower shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from (x)
the ordinary course of administration of this Agreement or such other
documents by any Bank or (y) any Bank's gross negligence or willful
misconduct or bad faith; and (iii) pay or reimburse (x) each Bank for
any payments made by such Bank to either Agent or CASC pursuant to the
provisions of Section 10.7 and (y) each Agent and CASC for any and all
liabilities, expenses or disbursements incurred by any of them which
pursuant to the provisions of Section 10.7 are the subject of
indemnification payments from the Banks to the extent that such Agent or
CASC, as the case may be, for whatever reason, did not receive such
indemnification payments from any Bank or Banks.
The agreements in this Section 12.6 shall survive repayment of the Loans and
all other amounts payable hereunder.
12.7 Successors and Assigns. (a) This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns except that (x) no Borrower may assign its rights or
obligations hereunder without the prior consent of all of the Banks (in the
case of CFC) or all of the C$ Banks (in the case of CCCL), and (y) no
assignment by a Bank of any of its rights or obligations hereunder shall be
effective unless (i) the assignee is a Commercial Bank (unless otherwise
agreed by CFC in its sole discretion), (ii) the assignee shall have designated
in writing to the Administrative Agent an account at the office of a bank that
is an ACH member to serve as such assignee's "Clearing Account" hereunder,
(iii) in the event of an assignment of less than all of such Bank's
obligations, (A) the principal amount of such Bank's obligations (which may
constitute U.S. Commitments and/or Canadian Commitments) so assigned shall be
in an aggregate amount of $10,000,000 or greater and (B) after giving effect
to any such assignment, the transferor Bank and the assignee (in each case
together with any Bank which is a subsidiary, affiliate, branch or agency of
such transferor Bank or assignee, respectively) shall each have obligations
hereunder (which may constitute U.S. Commitments and/or Canadian Commitments)
aggregating not less than $10,500,000 (unless, in each case, at CFC's
discretion, a lesser amount is mutually agreed upon between CFC and such Bank
or assignee, as applicable), (iv) CFC and the Administrative Agent shall have
consented to the making of such assignment (which consent in each case shall
not be unreasonably withheld or delayed), (v) the transferor Bank, the
assignee, the Administrative Agent and CFC (if its consent to such assignment
is required hereunder) shall have executed and delivered an Assignment and
Acceptance substantially in the form of Exhibit D-1, and (vi) the transferor
Bank shall have paid to the Administrative Agent a registration and processing
fee of $2,500 (or such lesser amount as may be agreed to by the Administrative
Agent); provided, however, that no consent by CFC shall be required in the
case of assignments to a Commercial Bank controlled by, controlling or under
common control
<PAGE>
54
with an assignor Bank or pursuant to a merger or consolidation of such Bank
with another entity or a similar transaction involving such Bank. Upon the
effectiveness of any assignment pursuant to this Section 12.7, Schedule I
shall be deemed to be amended to reflect such assignment. Each Bank may sell
participations in its Commitment or in all or any part of any Loan made by it
hereunder to a Commercial Bank, in which event the participant shall not have
any rights under this Agreement (the participant's rights against such Bank in
respect of such participation to be those set forth in the agreement executed
by such Bank in favor of the participant thereto) and all amounts payable by
the Facility Borrowers under Sections 2, 3 and 4 shall be determined as if
such Bank had not sold such participations; provided that (1) the terms of any
participation agreement or certificate relating to any such participation
shall prohibit any subparticipations by such participant; (2) any such
participation agreement or certificate shall permit the Bank granting such
participations the right to consent to waivers, amendments or supplements to
this Agreement without the consent of such participant except in the case of
(x) waivers of any Default or Event of Default described in Section 9(a), and
(y) any amendment or modification extending the maturity of any Loan, or
reducing the interest rate in respect of any Loan, or reducing any Facility
Fee, or extending the time of payment of interest on any Loan or of any
Facility Fee, or reducing the principal amount of any Loan, in each case to
the extent such waiver, amendment or supplement directly affects such
participant and (3) a participating interest of at least $10,000,000 shall be
sold pursuant to any such participation (unless, at CFC's discretion, a lesser
amount is mutually agreed upon between CFC and such Bank).
(b) Nothing herein shall prohibit any US$ Bank from pledging or
assigning all or any portion of its U.S. R/C Loans to any Federal Reserve Bank
in accordance with applicable law. In order to facilitate such pledge or
assignment, CFC hereby agrees that, upon request of any US$ Bank at any time
and from time to time after CFC has made its initial borrowing hereunder, CFC
shall provide to such Bank, at CFC's own expense, a promissory note,
substantially in the form of Exhibit E, evidencing the U.S. R/C Loans owing to
such Bank.
(c) (i) The Administrative Agent shall maintain at its address
referred to in Section 12.2 a copy of each Assignment and Acceptance delivered
to it and a register (the "U.S. Register") for the recordation of the names
and addresses of the US$ Banks, the U.S. Commitments of such Banks, and the
principal amount of each category of U.S. Loan owing to each such Bank from
time to time. The entries in the U.S. Register shall be conclusive, in the
absence of clearly demonstrable error, and CFC, the Administrative Agent and
the Banks may treat each Person whose name is recorded in the U.S. Register as
the owner of the U.S. R/C Loans recorded therein for all purposes of this
Agreement. The U.S. Register shall be available for inspection by CFC or any
US$ Bank at any reasonable time and from time to time upon reasonable prior
notice. The Administrative Agent shall give prompt written notice to CFC of
the making of any entry in the U.S. Register or any change in any such entry.
(ii) The Canadian Administrative Agent shall maintain at its
address referred to in Section 12.2 a register (the "Canadian Register") for
the recordation of the names and addresses of the C$ Banks, the Canadian
Commitments of such Banks, and the principal amount of each category of C$
Loan owing to each such Bank from time to time. The entries in the Canadian
Register shall be conclusive, in the absence of clearly demonstrable error,
and CCCL, the Canadian Administrative Agent and the Banks may treat each
Person whose name is recorded in the Canadian Register as the owner of the C$
Loans recorded therein for all purposes of this Agreement. The Canadian
Register shall be available for inspection by CFC, CCCL or any C$ Bank at any
reasonable time and from time to time upon reasonable prior notice. The
Canadian Administrative Agent shall give prompt written notice to CCCL of the
making of any entry in the Canadian Register or any change in any such entry.
<PAGE>
55
12.8 Right of Set-off. Upon (a) the occurrence and during the
continuance of an Event of Default and (b) with the consent of the Required
Banks, each Bank is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Bank (including, without
limitation, its branches) to or for the credit or the account of either
Facility Borrower against any and all of the obligations of such Facility
Borrower now or hereafter existing under this Agreement, irrespective of
whether or not such Bank shall have made any demand under this Agreement and
although such obligations may be unmatured. Each Bank agrees promptly to
notify the relevant Facility Borrower after any such set-off and application
made by such Bank, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Bank
under this Section 12.8 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Bank may
have.
12.9 Adjustments. If any Bank (a "benefitted Bank") shall at any
time, except in connection with any termination, replacement or assignment of
or by such Bank pursuant to this Agreement, receive any payment of all or part
of its U.S. R/C Loans or C$ Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in clause
(f) of Section 9, or otherwise) in a greater proportion than any such payment
to, or any collateral received by, any other Bank, if any, in respect of such
other Bank's U.S. R/C Loans or C$ Loans, as the case may be, or interest
thereon, such benefitted Bank shall purchase for cash from the other US$ Banks
or C$ Banks, as the case may be, such portion of each such other Bank's U.S.
R/C Loans or C$ Loans, as the case may be, or shall provide such other
relevant Banks with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Bank to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the other relevant Banks; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such benefitted
Bank, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. Each Facility
Borrower agrees that each Bank so purchasing a portion of another Bank's U.S.
R/C Loans or C$ Loans, as the case may be, may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such
portion as fully as if such Bank were the direct holder of such portion.
12.10 New Banks; Commitment Increases; Commitment Reallocations.
(a) With the consent of CFC and upon notification to the Administrative Agent,
one or more additional Commercial Banks may become a party to this Agreement
by executing a New Bank Supplement hereto with CFC and the Administrative
Agent, substantially in the form of Exhibit D-2, whereupon such Commercial
Bank (herein called a "New Bank") shall become a Bank for all purposes and to
the same extent as if originally a party hereto and shall be bound by and
entitled to the benefits of this Agreement, and Schedule I hereto shall be
deemed to be amended to add the name and Commitment of such New Bank. Each New
Bank shall be designated as a US$ Bank with a U.S. Commitment and/or a C$ Bank
with a Canadian Commitment, as specified in such New Bank Supplement.
(b) With the consent of CFC and upon notification to the
Administrative Agent, any Bank may increase the amount of its Commitment by
executing a Commitment Increase Supplement hereto with CFC and the
Administrative Agent, substantially in the form of Exhibit D-3, whereupon such
Bank shall be bound by and entitled to the benefits of this Agreement with
respect to the full amount of its Commitment as so increased (which increase
shall be allocated to its U.S. Commitment and/or its Canadian Commitment, as
specified in such Commitment Increase Supplement), and Schedule I hereto shall
be deemed to be amended to add the increased Commitment of such Bank.
<PAGE>
56
(c) With the consent of the Administrative Agent (which shall not
be unreasonably withheld), so long as no Default or Event of Default shall
have occurred and be continuing, CFC may reallocate all or any portion of the
Canadian Commitment of any C$ Bank to the U.S. Commitment of such C$ Bank's
Related US$ Bank or reallocate all or any portion of the U.S. Commitment of
any US$ Bank to the Canadian Commitment of such US$ Bank's Related C$ Bank by
executing a Commitment Reallocation Supplement hereto with the Administrative
Agent, substantially in the form of Exhibit D-4, whereupon the affected US$
Bank and C$ Bank shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of the U.S. Commitment or Canadian
Commitment of such Bank after giving effect to such reallocation, and Schedule
I hereto shall be deemed to be amended to reflect such reallocation. Each
reallocation pursuant to this Section 12.10(c) shall be subject to the prior
written consent of the affected US$ Bank and C$ Bank, provided, that (i) each
C$ Bank and its Related US$ Bank confirm that, as of the date hereof, such C$
Bank and its Related US$ Bank are willing to consider any reallocation of such
Related US$ Bank's U.S. Commitment to such C$ Bank's Canadian Commitment which
does not increase such C$ Bank's Canadian Commitment above its Maximum
Canadian Commitment Amount and (ii) no such consent shall be required in
connection with the reallocation of a C$ Bank's Canadian Commitment after such
Bank has sought reimbursement pursuant to Section 12.6(c)(i) (it being
understood that such reallocation shall not affect CFC's obligation to make
such reimbursement) so long as such reallocation will not result in any
additional costs, liabilities or expenses to such Bank or its Related US$ Bank
(other than liabilities consisting of the assumption by such US$ Bank of such
reallocated Commitment and the making of any U.S. R/C Loans in connection
therewith).
(d) (i) If on the date upon which a Commercial Bank becomes a New
Bank (designated as a US$ Bank), upon which a Bank obtains a U.S. Commitment
or upon which a US$ Bank's U.S. Commitment is changed pursuant to Section
12.10, there is an unpaid principal amount of U.S. R/C Loans, CFC shall borrow
U.S. R/C Loans from, or prepay U.S. R/C Loans of, such Bank, as applicable, in
an amount such that, after giving effect thereto, the quotient of (x) the U.S.
R/C Loans of such Bank of each Type (and, in the case of Eurodollar Loans, of
each Eurodollar Tranche) and (y) such Bank's U.S. Commitment is equal to the
comparable quotient of each other US$ Bank.
(ii) If on the date upon which a Commercial Bank becomes a New Bank
(designated as a C$ Bank), upon which a Bank obtains a Canadian Commitment or
upon which a C$ Bank's Canadian Commitment is changed pursuant to Section
12.10, there is an unpaid principal amount of C$ Loans, CCCL shall borrow C$
Loans from, or prepay or cash collateralize (in the case of Bankers'
Acceptances) C$ Loans of, such Bank, as applicable, in an amount such that,
after giving effect thereto, the quotient of (x) the C$ Loans of such Bank of
each category (and, in the case of Bankers' Acceptances, of each maturity) and
(y) such Bank's Canadian Commitment is equal to the comparable quotient of
each other C$ Bank. Any Bankers' Acceptance borrowed pursuant to the preceding
sentence shall yield an Acceptance Fee at a rate equal to the respective
Acceptance Fee rates then applicable to the Bankers' Acceptances of the other
C$ Banks having comparable maturities.
(e) The Administrative Agent shall advise the Canadian
Administrative Agent and the Banks of each addition of a New Bank and of each
change in a Bank's U.S. Commitment or Canadian Commitment pursuant to this
Section 12.10 and of the amount of any borrowing or prepayment required to be
made from or to any such Bank pursuant to this Section 12.10 upon such
addition or change.
12.11 Tax Forms. If any Bank which becomes a party to this
Agreement on any day after the date hereof pursuant to Section 12.7 or 12.10
is organized under the laws of any jurisdiction other than the United States
or any state thereof, such Bank shall, on the date such Person becomes a
<PAGE>
57
Bank, (i) represent to the transferor Bank (if applicable), the Administrative
Agent and the Facility Borrowers that under applicable law and treaties no
taxes will be required to be withheld by the Administrative Agent, the
Facility Borrowers or the transferor Bank (if applicable) with respect to any
payments to be made to such Bank in respect of the Loans hereunder, (ii)
furnish to the transferor Bank (if applicable), the Administrative Agent and
CFC either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein such Bank claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments hereunder) and
(iii) agree (for the benefit of the transferor Bank (if applicable), the
Administrative Agent and the Facility Borrowers) to provide the transferor
Bank (if applicable), the Administrative Agent and CFC a new Form 4224 or Form
1001 upon the expiration or obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Bank, and to comply from
time to time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
12.12 Counterparts. This Agreement may be executed by one or more
of the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with CFC and the Administrative Agent.
12.13 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
12.14 Submission to Jurisdiction; Waivers. Each Facility Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding commenced by any party hereto relating to this Agreement, or
for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts, and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that services of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to CFC at its address set forth in Section 12.2 or at such
other address of which the Administrative Agent shall have been notified
with copies addressed as set forth in Section 12.2; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
12.15 Integration. This Agreement represents the agreement of each
party with respect to the subject matter hereof and there are no promises or
representations by either Agent or any Bank relative to the subject matter
hereof not reflected herein.
<PAGE>
58
12.16 Judgments Relating to CCCL. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder by CCCL in one currency into another currency, CCCL agrees, to the
fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the relevant Bank could purchase the first currency with
such other currency for the first currency on the Banking Day immediately
preceding the day on which final judgment is given.
(b) The obligations of CCCL in respect of any sum due in C$ to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than C$, be discharged only to the extent that, on the
Banking Day following receipt by the Applicable Creditor of any sum adjudged
to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction
purchase C$ with the Judgment Currency; if the amount of C$ so purchased is
less than the sum originally due to the Applicable Creditor in C$, CCCL
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Applicable Creditor against such loss, provided, that if the
amount of C$ so purchased exceeds the sum originally due to the Applicable
Creditor, the Applicable Creditor agrees to remit such excess to CCCL. The
obligations of the CCCL contained in this Section 12.16 shall survive the
termination of this Agreement and the payment of all other amounts owing
hereunder.
<PAGE>
59
12.17 WAIVERS OF JURY TRIAL. THE FACILITY BORROWERS, THE
ADMINISTRATIVE AGENT, THE CANADIAN ADMINISTRATIVE AGENT AND THE BANKS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
CHRYSLER FINANCIAL CORPORATION
By: /s/ David A. Robison
----------------------------------
Title: Vice President and Treasurer
CHRYSLER CREDIT CANADA LTD.
By: /s/ David A. Robison
-----------------------------------
Title: Vice President and Treasurer
CHEMICAL BANK,
as Administrative Agent
By: /s/ Rosemary Bradley
----------------------------------
Title: Vice President
ROYAL BANK OF CANADA,
as Canadian Administrative Agent
By: /s/ William Stanley
-----------------------------------
Title: Manager, Business Operations
Exhibit 10-H
CONFORMED COPY
=============================================================================
$5,600,000,000
LONG TERM REVOLVING CREDIT AGREEMENT
Dated as of May 1, 1995
CHRYSLER FINANCIAL CORPORATION and
CHRYSLER CREDIT CANADA LTD.,
as BORROWERS
ABN AMRO BANK, N.V.,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF COMMERCE,
THE CHASE MANHATTAN BANK, N.A., CREDIT SUISSE,
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONSBANK OF NORTH CAROLINA, N.A.,
SOCIETE GENERALE and THE TORONTO-DOMINION BANK,
as MANAGING AGENTS
ROYAL BANK OF CANADA,
as CANADIAN ADMINISTRATIVE AGENT
CHEMICAL BANK,
as ADMINISTRATIVE AGENT
=============================================================================
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS............................................ 1
1.1 Defined Terms........................................ 1
1.2 Other Definitional Provisions........................ 18
SECTION 2. THE U.S. COMMITMENTS................................... 18
2.1 The U.S. Commitments................................. 18
2.2 Procedure for Borrowing.............................. 18
2.3 U.S. L/F Loans....................................... 19
2.4 Conversion and Continuation Options.................. 20
2.5 Minimum Amount of Eurodollar Tranches................ 20
2.6 Certain Matters Relating to Eurodollar Loans......... 20
SECTION 3. THE CANADIAN COMMITMENTS............................... 22
3.1 The Canadian Commitments............................. 22
3.2 Procedure for C$ R/C Loan Borrowing.................. 22
3.3 Bankers' Acceptances................................. 22
3.4 C$ L/F Loans......................................... 25
3.5 Conversion Option.................................... 26
3.6 Currency Fluctuations, etc........................... 27
SECTION 4. GENERAL PROVISIONS..................................... 27
4.1 Evidence of Debt..................................... 27
4.2 Repayment of Loans................................... 28
4.3 Interest Rate and Payment Dates...................... 28
4.4 Lending Procedures................................... 29
4.5 Facility Fees........................................ 29
4.6 Termination or Reduction of Commitments.............. 30
4.7 Optional Prepayments................................. 30
4.8 Pro Rata Treatment and Payments...................... 30
4.9 Computation of Interest and Fees..................... 31
4.10 Increased Costs..................................... 32
4.11 Changes in Capital Requirements..................... 33
4.12 Indemnity........................................... 34
4.13 Taxes............................................... 35
4.14 Use of Proceeds..................................... 36
4.15 Replacement of Banks................................ 36
SECTION 5. REPRESENTATIONS AND WARRANTIES......................... 37
5.1 Financial Condition.................................. 37
5.2 No Change............................................ 37
5.3 Corporate Existence.................................. 37
5.4 Corporate Authorization; No Violation................ 37
5.5 Government Authorization............................. 38
5.6 Federal Regulations.................................. 38
5.7 Enforceable Obligations.............................. 38
5.8 No Material Litigation............................... 38
5.9 Taxes................................................ 38
<PAGE>
Page
5.10 ERISA............................................... 38
5.11 Investment Company Act; Other Regulations........... 38
5.12 Existing Financial Covenants........................ 39
SECTION 6. CONDITIONS PRECEDENT................................... 39
6.1 Conditions to Effectiveness.......................... 39
6.2 Conditions to Each Facility Loan..................... 40
SECTION 7. AFFIRMATIVE COVENANTS.................................. 41
7.1 Financial Statements, etc............................ 41
7.2 Maintenance of Existence............................. 42
7.3 Notices.............................................. 42
SECTION 8. NEGATIVE COVENANTS..................................... 42
8.1 Debt to Equity Ratio................................. 42
8.2 Limitation on Transactions with Affiliates........... 42
8.3 Limitation on Fundamental Change..................... 42
8.4 Limitation on Liens.................................. 43
8.5 Additional Covenants................................. 44
SECTION 9. EVENTS OF DEFAULT...................................... 45
SECTION 10. THE AGENTS............................................ 48
10.1 Appointment......................................... 48
10.2 Delegation of Duties................................ 48
10.3 Exculpatory Provisions.............................. 48
10.4 Reliance by Agents and CASC......................... 48
10.5 Notice of Default................................... 49
10.6 Non-Reliance on Agents, Other Banks and CASC. ..... 49
10.7 Indemnification..................................... 49
10.8 Agents in their Individual Capacity................. 50
10.9 Successor Agents.................................... 50
10.10 The Managing Agents................................ 50
SECTION 11. FOREIGN CURRENCY SUBFACILITIES........................ 51
11.1 Terms of Foreign Currency Subfacilities............. 51
11.2 Currency Fluctuations, etc.......................... 52
SECTION 12. GUARANTEE............................................. 53
12.1 Guarantee........................................... 53
12.2 No Subrogation, Contribution, Reimbursement
or Indemnity........................................ 54
12.3 Amendments, etc. with respect to the Subsidiary
Borrower Obligations................................ 54
12.4 Guarantee Absolute and Unconditional................ 54
12.5 Reinstatement....................................... 55
12.6 Payments............................................ 55
12.7 Judgments Relating to Guarantee..................... 56
12.8 Independent Obligations............................. 56
- ii -
<PAGE>
Page
SECTION 13. MISCELLANEOUS......................................... 56
13.1 Amendments and Waivers.............................. 56
13.2 Notices............................................. 57
13.3 Clearing Accounts................................... 58
13.4 No Waiver; Cumulative Remedies...................... 59
13.5 Survival of Representations and Warranties.......... 59
13.6 Payment of Expenses................................. 59
13.7 Successors and Assigns.............................. 60
13.8 Right of Set-off.................................... 62
13.9 Adjustments......................................... 62
13.10 New Banks; Commitment Increases; Commitment
Reallocations...................................... 62
13.11 Changing Designations of Liquidity Facility
Banks.............................................. 64
13.12 Tax Forms.......................................... 64
13.13 Counterparts....................................... 64
13.14 Governing Law...................................... 64
13.15 Submission to Jurisdiction; Waivers................ 65
13.16 Integration........................................ 65
13.17 Judgments Relating to CCCL......................... 65
13.18 WAIVERS OF JURY TRIAL.............................. 66
SCHEDULES
- ---------
SCHEDULE I Commitments
SCHEDULE II Existing Financial Covenants
EXHIBITS
- --------
EXHIBIT A Addendum
EXHIBIT B Closing Certificate
EXHIBIT C-1 Opinion of Simpson Thacher & Bartlett
EXHIBIT C-2 Opinion of General Counsel of CFC
EXHIBIT C-3 Opinion of Canadian Counsel to CCCL
EXHIBIT D-1 Assignment and Acceptance
EXHIBIT D-2 New Bank Supplement
EXHIBIT D-3 Commitment Increase Supplement
EXHIBIT D-4 Commitment Reallocation Supplement
EXHIBIT E Promissory Note
EXHIBIT F Foreign Currency Subfacility Addendum
- iii -
<PAGE>
LONG TERM REVOLVING CREDIT AGREEMENT dated as of May 1, 1995
among CHRYSLER FINANCIAL CORPORATION, a Michigan corporation ("CFC"), CHRYSLER
CREDIT CANADA LTD. ("CCCL"), a Canadian corporation, the several commercial
banks from time to time parties to this Agreement (as more specifically
defined below, the "Banks"), ABN AMRO BANK, N.V., BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF COMMERCE, THE CHASE
MANHATTAN BANK, N.A., CREDIT SUISSE, THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, NATIONSBANK OF NORTH
CAROLINA, N.A., SOCIETE GENERALE and THE TORONTO-DOMINION BANK, as Managing
Agents (in such capacity, the "Managing Agents"), ROYAL BANK OF CANADA, a
Canadian chartered bank ("Royal"), as Canadian administrative agent for the C$
Banks (as defined below) hereunder, and CHEMICAL BANK, a New York banking
corporation ("Chemical"), as administrative agent for the Banks hereunder.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
defined in the caption to this Agreement shall have the meanings set forth
therein, and the following terms have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"Acceptance Fee": the fee payable in C$ to each C$ Bank in
respect of Bankers' Acceptances computed in accordance with Section
3.3.
"Accumulated Funding Deficiency": any "accumulated funding
deficiency" as defined in Section 302 of ERISA.
"ACH": an Automated Clearing House.
"Addendum": an instrument, substantially in the form of
Exhibit A, by which a Bank becomes a party to this Agreement.
"Administrative Agent": Chemical Bank and its affiliates, in
their respective capacities as administrative agent for the Banks
under this Agreement and arranger of the Commitments, together with
any of their respective successors.
"Affected Bank": as defined in Section 2.6(b).
"Affiliate": with respect to any Person, any other Person
that, directly or indirectly, controls or is controlled by or is
under common control with such Person. For the purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and
<PAGE>
2
policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Agents": the collective reference to the Administrative
Agent and the Canadian Administrative Agent.
"Aggregate Canadian Extensions of Credit": with respect to
any C$ Bank, at any time, the aggregate principal amount of all C$
Loans (US$ Equivalent) made by such Bank then outstanding.
"Aggregate Foreign Extensions of Credit": with respect to
any US$ Bank, at any time, the sum of (a) the aggregate Foreign
Currency Subfacility Maximum Borrowing Amounts with respect to such
Bank under any Foreign Committed Subfacility to which it is a party
and (b) the aggregate outstanding principal amount of all Foreign
Currency Loans (US$ Equivalent) made by such Bank under any Foreign
Uncommitted Subfacility to which it is a party.
"Aggregate U.S. Extensions of Credit": with respect to any
US$ Bank, at any time, the aggregate principal amount of all U.S.
Loans made by such Bank then outstanding.
"Aggregate U.S./Foreign Extensions of Credit": with respect
to any US$ Bank, at any time, the sum of the Aggregate Foreign
Extensions of Credit of such Bank and the Aggregate U.S. Extensions
of Credit of such Bank at such time.
"Agreement": this Long Term Revolving Credit Agreement, as
the same may be amended, modified or supplemented from time to time.
"Applicable BA Discount Rate":
(a) with respect to any Schedule I C$ Bank, as applicable to
a Bankers' Acceptance being purchased by such Schedule I C$ Bank on
any day, the average (as determined by the Canadian Administrative
Agent) of the respective percentage discount rates (expressed to two
decimal places and rounded upward, if necessary, to the nearest
1/100th of 1%) quoted to the Canadian Administrative Agent by each
Schedule I C$ Reference Bank as the percentage discount rate at which
such Schedule I C$ Reference Bank would, in accordance with its
normal practices, at or about 10:00 A.M., Toronto time, on such day,
be prepared to purchase bankers' acceptances accepted by such
Schedule I Reference C$ Bank having a maturity date comparable to the
maturity date of such Bankers' Acceptance; and
(b) with respect to any Schedule II C$ Bank, as applicable
to a Bankers' Acceptance being purchased by such Schedule II C$ Bank
on any day, the average (as determined by the Canadian Administrative
Agent) of the respective percentage discount rates (expressed to two
decimal places and rounded upward, if necessary, to the nearest
1/100th of 1%) quoted to the Canadian Administrative Agent by each
Schedule II C$ Reference Bank as the percentage discount rate at
which such Schedule II C$ Reference Bank would, in accordance with
its normal practices, at or about 10:00 A.M., Toronto time, on such
day, be prepared to purchase bankers' acceptances accepted by such
Schedule II Reference C$ Bank having a maturity date comparable to
the maturity date of such Bankers' Acceptance.
<PAGE>
3
"Applicable Margin": with respect to each Eurodollar Loan or
Banker's Acceptance at any date, the applicable percentage per annum
set forth below based upon the Status and U.S. Utilization or
Canadian Utilization, as applicable, on such date (provided that if
the Commitments have been terminated prior to such date, the U.S.
Utilization and Canadian Utilization for such date shall be deemed to
be greater than 50%):
<TABLE>
<CAPTION>
Level I Level II Level III Level IV Level V
U.S./Canadian Utilization Status Status Status Status Status
- ------------------------- -------- -------- --------- --------- --------
<S> <C> <C> <C> <C> <C>
Less than or equal to
50%: 0.2500% 0.2500% 0.3000% 0.3750% 0.5000%
Greater than 50%: 0.3750% 0.3750% 0.4250% 0.5000% 0.6250%
</TABLE>
"Assessment Rate": for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently
estimated by the Administrative Agent as the then current net annual
assessment rate that will be employed in determining amounts payable
by Chemical to the Federal Deposit Insurance Corporation (or any
successor) for insurance by such Corporation (or any successor) of
time deposits made in Dollars at Chemical's domestic offices.
"Available Canadian Commitment": as to any C$ Bank, at a
particular time, an amount equal to the excess, if any, of (a) the
amount of such Bank's Canadian Commitment at such time over (b) the
Aggregate Canadian Extensions of Credit of such Bank at such time.
"Available U.S. Commitment": as to any US$ Bank, at a
particular time, an amount equal to the excess, if any, of (a) the
amount of such Bank's U.S. Commitment at such time over (b) the
Aggregate U.S./Foreign Extensions of Credit of such Bank at such
time.
"BA Discount Proceeds": in respect of any Bankers'
Acceptance to be purchased by a C$ Bank on any day under Section 3.3,
an amount (rounded to the nearest whole Canadian cent, and with
one-half of one Canadian cent being rounded up) calculated on such
day by dividing:
(A) the face amount of such Bankers' Acceptance; by
(B) the sum of one plus the product of:
(i) the Applicable BA Discount Rate (expressed
as a decimal) applicable to such Bankers'
Acceptance; and
(ii) a fraction, the numerator of which is the
number of days remaining in the term of
such Bankers' Acceptance and the
denominator of which is the number of days
in the calendar year in which the Bankers'
Acceptance is issued, being 365 or 366, as
applicable;
with such product being rounded up or down
to the fifth decimal place and .000005
being rounded up.
<PAGE>
4
"Bankers' Acceptance": a bill of exchange denominated in C$
drawn by CCCL and accepted by a C$ Bank pursuant to Section 3.3.
"Banking Day": in respect of any city, any day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in that city.
"Bank Rate": at any date of determination, the rate
determined by the Bank of Canada at its weekly three-month Canadian
Dollar Treasury Bill auction.
"Banks": as defined in the caption to this Agreement;
provided, that (a) each reference herein to any Bank shall be deemed
to be a reference to each US$ Bank and to each C$ Bank unless the
context otherwise requires (in which case such reference shall be
deemed to be a reference only to each US$ Bank or to each C$ Bank, as
applicable) and (b) each reference herein to any Bank shall, to the
extent applicable, be deemed to be a reference to any subsidiary,
affiliate, branch or agency of any Bank which is a party to a Foreign
Currency Subfacility.
"Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/100th of 1%) equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Base CD Rate in effect
on such day plus 1% and (c) the Effective Federal Funds Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from
time to time by Chemical as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced; "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment
Rate; and "Three-Month Secondary CD Rate" shall mean, for any day,
the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be
a Business Day, the next preceding Business Day) by the Federal
Reserve Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Federal Reserve Board, be published in Federal
Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported for such day or such
next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately 10:00 A.M.,
New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate
of deposit dealers of recognized standing selected by it. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive absent clearly demonstrable error)
that it is unable to ascertain the Base CD Rate or the Effective
Federal Funds Rate or both for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms thereof, the Base Rate shall be
determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD
Rate or the Effective Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Effective Federal Funds Rate, respectively.
<PAGE>
5
"Base Rate Loans": U.S. Loans at such time as they bear
interest at a rate based upon the Base Rate.
"Borrowing Date": any Business Day prior to the Termination
Date specified in a notice pursuant to Section 2.2, 2.3, 3.2, 3.3 or
3.4 as a date on which a Facility Borrower requests Facility Loans to
be made hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close, except that, (a) when used in connection
with a Eurodollar Loan with respect to which the Eurodollar Rate is
determined based upon the Telerate screen in accordance with the
definition of Eurodollar Rate, "Business Day" shall mean any Business
Day on which dealings in foreign currencies and exchange between
banks may be carried on in London, England and New York, New York and
(b) when used in connection with a C$ Loan, "Business Day" shall mean
a day on which banks are open for business in Toronto, Ontario,
Canada but excludes Saturday, Sunday and any other day which is a
legal holiday in Toronto, Ontario, Canada.
"C$ Bank": each Bank designated as a "C$ Bank" on Schedule
I, as such Schedule may be modified from time to time pursuant to
Section 13.7 or 13.10.
"C$ Commitment Percentage": as to any C$ Bank at any time,
the percentage of the aggregate Canadian Commitments then constituted
by such Bank's Canadian Commitment.
"C$ L/F Bank": each C$ Bank that has agreed to make C$ L/F
Loans hereunder as indicated on Schedule I, as such Schedule may be
modified from time to time pursuant to Section 13.7 or 13.11.
"C$ L/F Loans": as defined in Section 3.4.
"C$ Loans": the collective reference to C$ R/C Loans, C$ L/F
Loans and Bankers' Acceptances. For the purposes of this agreement,
the principal amount of any C$ Loan constituting a Bankers'
Acceptance shall be deemed to be the face amount of such Bankers'
Acceptance.
"C$ Prime Loans": C$ Loans at such time as they bear
interest at a rate based upon the Canadian Prime Rate.
"C$ R/C Loans": as defined in Section 3.1.
"Canadian Administrative Agent": Royal, in its capacity as
Canadian administrative agent for the C$ Banks under this Agreement,
together with any of its successors.
"Canadian Calculation Date": the Business Day immediately
preceding the Effective Date and the last Business Day of each
calendar month.
"Canadian Commitment": as to any C$ Bank, its obligation to
make C$ R/C Loans and purchase Bankers' Acceptances and, in the case
of C$ L/F Banks, to make C$ L/F Loans, to or from CCCL hereunder in
an aggregate principal amount (US$ Equivalent) at any one time
outstanding not to exceed the amount (expressed in Dollars) set forth
opposite such
<PAGE>
6
Bank's name on Schedule I, as such amount may be changed from time to
time as provided herein.
"Canadian Dollars" or "C$": lawful currency of Canada.
"Canadian Exchange Rate": on a particular date, the rate at
which C$ may be exchanged into Dollars, determined by reference to
the Bank of Canada noon rate as published on the Reuters Screen page
BOFC. In the event that such rate does not appear on such Reuters
page, the "Canadian Exchange Rate" shall be determined by reference
to any other means (as selected by the Canadian Administrative Agent)
by which such rate is quoted or published from time to time by the
Bank of Canada; provided, that if at the time of any such
determination, for any reason, no such exchange rate is being quoted
or published, the Canadian Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, and
such determination shall be conclusive absent manifest error.
"Canadian Prime Rate": with respect to a C$ Prime Loan, on
any day, the greater of (a) the annual rate of interest announced
from time to time by Royal as its reference rate then in effect for
determining interest rates on C$ denominated commercial loans in
Canada and (b) the annual rate of interest equal to the sum of (i)
the CDOR Rate and (ii) 0.75% per annum.
"Canadian Register": as defined in Section 13.7(c).
"Canadian Reset Date" as defined in Section 3.6(a).
"Canadian Utilization": with respect to any Utilization
Period, the percentage equivalent of a fraction (a) the numerator of
which is the average daily principal amount of C$ Loans (US$
Equivalent) outstanding during such Utilization Period and (b) the
denominator of which is the average daily amount of the aggregate
Canadian Commitments of all C$ Banks during such Utilization Period.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"CASC": Chemical Bank Agency Services (and any successor).
"CDOR Rate": on any day, the annual rate of interest which
is the rate based on an average 30 day rate applicable to C$ bankers'
acceptances appearing on the "Reuters Screen CDOR Page" (as defined
in the International Swap Dealer Association, Inc. definitions, as
modified and amended from time to time) as of 10:00 A.M., Toronto
time, on such day, or if such day is not a Business Day, then on the
immediately preceding Business Day; provided, however, if such rate
does not appear on the Reuters Screen CDOR Page as contemplated, then
the CDOR Rate on any day shall be calculated as the arithmetic mean
of the 30 day rates applicable to C$ bankers' acceptances quoted by
the Schedule I C$ Reference Banks as of 10:00 A.M., Toronto time, on
such day, or if such day is not a Business Day, then on the
immediately preceding Business Day. If less than all of the Schedule
I C$ Reference Banks quote the aforementioned rate on the days and at
the times described above, the "CDOR Rate" shall be such other rate
or rates as the Canadian Administrative Agent and CCCL may agree.
<PAGE>
7
"CFC Affiliate": any Person that, directly or indirectly,
controls or is controlled by or is under common control with CFC
(including, without limitation, Chrysler and its subsidiaries, but
excluding any Subsidiary). For the purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with
respect to any Person, shall mean the power, directly or indirectly,
either to (a) vote 20% or more of the securities (or other equity
interests) of such Person having ordinary voting power or (b) direct
or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities (or other equity
interests) or by contract or otherwise.
"Change of Control": any of the following events or
circumstances: (a) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended) shall either (i) acquire beneficial ownership of more than
50% of any outstanding class of common stock of Chrysler having
ordinary voting power in the election of directors of Chrysler or
(ii) obtain the power (whether or not exercised) to elect a majority
of Chrysler's directors or (b) the Board of Directors of Chrysler
shall not consist of a majority of Continuing Directors. As used in
this definition, "Continuing Directors" shall mean the directors of
Chrysler on the Effective Date and each other director of Chrysler,
if such other director's nomination for election to the Board of
Directors of Chrysler is recommended by a majority of the then
Continuing Directors.
"Chartered Bank": a bank named on Schedule I or Schedule II
to the Bank Act (Canada).
"Chrysler": Chrysler Corporation, a Delaware corporation.
"Clearing Account": as to any US$ Bank, the bank account
designated in its Addendum, or such other bank account as such Bank
shall designate in writing to the Administrative Agent from time to
time, provided that such other bank account shall be maintained at
the office of an ACH member.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commercial Bank": (a) with respect to the U.S. Commitments
and the U.S. Loans thereunder, any Person (i) licensed to engage in
commercial banking business and (ii) which on the date it becomes a
Bank (or purchases a participation) hereunder (x) is entitled to
receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (y) is
entitled to an exemption from, or is not subject to, United States
backup withholding tax and (b) with respect to the Canadian
Commitments and the C$ Loans thereunder, any Chartered Bank which
(except in the case of participations) has a Related US$ Bank.
"Commitment": with respect to any Bank, the sum of such
Bank's U.S. Commitment and Canadian Commitment.
"Commitment Percentage": as to any Bank at any time, the
percentage of the aggregate Commitments then constituted by such
Bank's Commitment.
<PAGE>
8
"Commitment Period": as to the Commitment of any Bank, the
period from and including the Effective Date (or, in the case of an
assignee that is not already a Bank and any New Bank, from the date
that such Person becomes party to this Agreement as provided in
Section 13.7 or 13.10, as applicable) to but not including the
Termination Date or such earlier date as the Commitments shall
terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with CFC within the
meaning of Section 4001 of ERISA or is part of a group which includes
CFC and is treated as a single employer under Section 414 of the
Code.
"Contractual Obligation": as to any Person, any enforceable
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by which
it or any of its property is bound.
"D&P": Duff & Phelps Credit Rating Company and its
successors.
"Debt": at any date, the amount which would appear in
accordance with GAAP on a consolidated balance sheet of CFC and its
Subsidiaries on such date opposite the heading "debt" (or any similar
item).
"Default": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, lapse of time, or
both, or the happening of any other condition, has been satisfied.
"Dollars" or "$": lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"Effective Date": subject to satisfaction of the conditions
specified in Section 6.1, May 5, 1995.
"Effective Federal Funds Rate": for any day, the weighted
average of the rates on overnight Federal funds transactions between
members of the Federal Reserve System arranged by Federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average quotations
for the day of such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by
it.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Equity": at any date, the amount which would appear in
accordance with GAAP on a consolidated balance sheet of CFC and its
Subsidiaries on such date opposite the heading "total shareholders'
investment" (or any similar item).
"Eurodollar Loan": any U.S. Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
<PAGE>
9
"Eurodollar Rate": in the case of any Eurodollar Loan, with
respect to each day during each Interest Period (other than any
seven-day Interest Period) pertaining to such Eurodollar Loan, the
rate of interest determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the
Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period, provided, that in the
event that such rate does not appear on Page 3750 of the Telerate
Service (or otherwise on such service), the "Eurodollar Rate" shall
be determined by reference to such other publicly available service
for displaying eurodollar rates as may be agreed upon by the
Administrative Agent and CFC. In the absence of such agreement, and
in the case of any seven-day Interest Period pertaining to such
Eurodollar Loan, the "Eurodollar Rate" shall instead be the rate per
annum equal to the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the respective rates notified to the
Administrative Agent by each of the Eurodollar Reference Banks as the
rate at which such Reference Bank is offered Dollar deposits at or
about 10:00 A.M., New York City time, two Business Days prior to the
beginning of the relevant Interest Period, in the interbank
eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being
conducted for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to
the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
"Eurodollar Reference Banks": Chemical, Royal and Swiss Bank
Corporation; provided, that, for the purposes of determining the
Eurodollar Rate with respect to any seven-day Interest Period,
Chemical shall be the sole Eurodollar Reference Bank.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans having the same Interest Period, whether or not originally made
on the same day.
"Event of Default": any of the events specified in Section
9, provided that any requirement for the giving of notice, the lapse
of time, or both, or the happening of any other condition, has been
satisfied.
"Excess U.S. Utilization Period": any Utilization Period
with respect to which the U.S. Utilization exceeds 50%.
"Existing Agreements": the collective reference to (a) the
Revolving Credit Agreement dated as of May 23, 1994 among CFC, the
banks parties thereto and Chemical, as Agent, (b) the Revolving
Credit Agreement dated as of May 23, 1994 among CCCL, the banks
parties thereto and Royal, as Agent, (c) the Short Term Receivables
Purchase Agreement dated as of May 23, 1994 among CFC, certain of its
Subsidiaries and Chemical, as Agent and Administrative Agent, (d) the
Long Term Receivables Purchase Agreement dated as of May 23, 1994
among CFC, certain of its Subsidiaries and Chemical, as Agent and
Administrative Agent, (e) the Short Term Receivables Purchase
Agreement dated as of May 23, 1994 among CCCL, certain of its
Subsidiaries and Royal, as Agent, and (f) the Long Term Receivables
Purchase Agreement dated as of May 23, 1994 among CCCL, certain of
its Subsidiaries and Royal, as Agent.
"Facility Borrowers": the collective reference to CFC and
CCCL.
"Facility Fee": as defined in Section 4.5.
<PAGE>
10
"Facility Fee Rate": for any day, the rate per annum set
forth below opposite the Status in effect on such day:
<TABLE>
<CAPTION>
Facility Fee
Status Rate
--------------- -------------
<S> <C>
Level I Status 0.1000%
Level II Status 0.1250%
Level III Status 0.1500%
Level IV Status 0.2500%
Level V Status 0.3750%
</TABLE>
"Facility Loans": the collective reference to the U.S. Loans
and the C$ Loans.
"Federal Reserve Board": the Board of Governors of the
Federal Reserve System of the United States.
"Final Date": as defined in Section 4.5.
"Finance Business": (a) the small loan, personal finance,
consumer finance or installment credit business (including the
business of making collateral loans secured by credit obligations or
personal property), (b) the sales finance business and the business
of purchasing and selling notes and accounts receivable (whether or
not repayable in installments) and interests therein, (c) the
commercial financing and factoring business as generally conducted,
including the leasing of tangible personal property, and (d) any
business (including, without limitation, securitization and other
receivables-based transactions) related to or conducted in connection
with any business of the character referred to in the foregoing
clauses (a), (b) and (c) other than insurance underwriting.
"Finance-Related Insurance Business": the business of (a)
insuring articles and merchandise the sale or leasing of which is
financed in the ordinary course of the Finance Business, (b) insuring
the lives of individuals who are liable for the payment of the
amounts owing on such sales or leases and writing accident and health
insurance on such individuals, (c) automobile dealership property,
liability, workers compensation and related insurance, (d) motor
vehicle physical damage and liability insurance, and such other
insurance business that is not described in clause (a), (b), (c) or
(d) above to the extent that such insurance business does not produce
at any time aggregate premiums written (net of reinsurance ceded) by
all Subsidiaries in an amount greater than 50% of the aggregate
amount of all premiums written (net of reinsurance ceded) at such
time in all of the insurance business of such Subsidiaries.
"Finance Subsidiary": any Domestic Subsidiary that is
engaged primarily in the Finance Business.
"Fitch": Fitch Investors Service, Inc. and its successors.
<PAGE>
11
"Foreign Calculation Date": the last Business Day of each
calendar month.
"Foreign Committed Subfacility": any Foreign Currency
Subfacility designated as a "Foreign Committed Subfacility" pursuant
to Section 11.1(a).
"Foreign Currency": Dollars and any currency other than
Dollars as to which a Foreign Exchange Rate may be calculated.
"Foreign Currency Loans": any loan made pursuant to a
Foreign Currency Subfacility.
"Foreign Currency Subfacility": any credit facility
providing for borrowings in a Foreign Currency which has been
designated as a "Foreign Currency Subfacility" pursuant to a Foreign
Currency Subfacility Addendum.
"Foreign Currency Subfacility Addendum": a Foreign Currency
Subfacility Addendum substantially in the form of Exhibit F and
conforming to the requirements of Section 11.
"Foreign Currency Subfacility Maximum Borrowing Amount": as
defined in Section 11.1(b).
"Foreign Exchange Rate": with respect to any Foreign
Currency on a particular date, the rate at which such Foreign
Currency may be exchanged into Dollars, determined by reference to
the selling rate in respect of such Foreign Currency published in the
"Wall Street Journal" on the relevant Foreign Calculation Date. In
the event that such rate is not, or ceases to be, so published by the
"Wall Street Journal", the "Foreign Exchange Rate" with respect to
such Foreign Currency shall be determined by reference to such other
publicly available source for determining exchange rates as may be
agreed upon by the Administrative Agent and CFC or, in the absence of
such agreement, such "Foreign Exchange Rate" shall instead be the
Administrative Agent's spot rate of exchange in the interbank market
where its foreign currency exchange operations in respect of such
Foreign Currency are then being conducted, at or about 12:00 noon,
local time, at such date for the purchase of Dollars with such
Foreign Currency, for delivery two Banking Days later; provided, that
if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, and
such determination shall be conclusive absent manifest error.
"Foreign Reset Date": as defined in Section 11.2(a).
"Foreign Subsidiary": any Subsidiary that (a) is organized
under the laws of any jurisdiction outside the United States of
America, Puerto Rico and Canada, or (b) conducts the major portion of
its business outside the United States of America, Puerto Rico and
Canada.
"Foreign Subsidiary Borrower": any Subsidiary which is a
borrower under a Foreign Currency Subfacility.
"Foreign Uncommitted Subfacility": any Foreign Currency
Subfacility designated as a "Foreign Uncommitted Subfacility"
pursuant to the relevant Foreign Currency Subfacility Addendum.
<PAGE>
12
"GAAP": generally accepted accounting principles in the
United States of America (and, to the extent applicable, Canada) in
effect from time to time, except that for the purposes of determining
compliance with the covenants set forth in Section 8, "GAAP" shall
mean generally accepted accounting principles in the United States of
America (and, to the extent applicable, Canada) in effect on December
31, 1994 applied consistently with those used in compiling the
financial statements included in the 1994 Annual Report.
"Governmental Authority": any nation or government, any
state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Indebtedness": as applied to any Person at any date, (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services which would appear on a
consolidated balance sheet of such Person (or, in the case of CFC and
its Subsidiaries, CFC) prepared in accordance with GAAP, (b)
obligations of such Person under leases which appear as capital
leases on a consolidated balance sheet of such Person prepared in
accordance with GAAP and (c) any withdrawal obligation of such Person
or any Commonly Controlled Entity thereof to a Multiemployer Plan.
"Interest Period": with respect to any Eurodollar Tranche:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such Eurodollar Tranche and ending seven days or
one, two, three or six months thereafter, as selected by CFC
in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Tranche and ending seven days or one, two, three
or six months thereafter, as selected by CFC by irrevocable
notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current
Interest Period with respect thereto (or, if no such period
is specified, ending one month thereafter);
provided that, the foregoing provisions are subject to the following:
(A) if any Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest
Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding
Business Day;
(B) no Interest Period may be selected by CFC if
such Interest Period would end after the Termination Date;
and
(C) any Interest Period of at least one month's
duration that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
relevant calendar month.
<PAGE>
13
"Level": any of Level I, Level II, Level III, Level IV or
Level V.
"Level I": any of the following long-term senior unsecured
debt ratings: A+ or better by S&P, A1 or better by Moody's, A+ or
better by D&P or A+ or better by Fitch.
"Level II": any of the following long-term senior unsecured
debt ratings: A or A- by S&P, A2 or A3 by Moody's, A or A- by D&P or
A or A- by Fitch.
"Level III": any of the following long-term senior unsecured
debt ratings: BBB+ or BBB by S&P, Baa1 or Baa2 by Moody's, BBB+ or
BBB by D&P or BBB+ or BBB by Fitch.
"Level IV": any of the following long-term senior unsecured
debt ratings: BBB- by S&P, Baa3 by Moody's, BBB- by D&P or BBB- by
Fitch.
"Level V": any of the following long-term senior unsecured
debt ratings: BB+ or lower (or unrated) by S&P, Ba1 or lower (or
unrated) by Moody's, BB+ or lower (or unrated) by D&P or BB+ or lower
(or unrated) by Fitch.
"L/F Loans": the collective reference to U.S. L/F Loans and
C$ L/F Loans.
"Lien": with respect to any property of any Person, any
mortgage, pledge, hypothecation, encumbrance, lien (statutory or
other), charge or other security interest of any kind in or with
respect to such property (including, without limitation, any
conditional sale or other title retention agreement, and any
financing lease under which such Person is lessee having
substantially the same economic effects as any of the foregoing).
"Loans": the collective reference to the Facility Loans and
the Foreign Currency Loans.
"Local Time": (a) in the case of matters relating to U.S.
Loans, New York City time, and (b) in the case of matters relating to
C$ Loans, Toronto time.
"Material Indebtedness": any item or related items of
Indebtedness (or, in the case of any revolving credit facility, any
commitments) having an aggregate principal amount of at least
$100,000,000 (or the equivalent thereof in any other currency).
"Maximum Canadian Commitment Amount": with respect to each
C$ Bank, the amount specified opposite such Bank's name on Schedule I
in the column captioned "Maximum Canadian Commitment Amount".
"Moody's": Moody's Investors Service, Inc. and its
successors.
"Multiemployer Plan": a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"New Bank": as defined in Section 13.10(a).
"1994 Annual Report": CFC's annual report to stockholders
for the fiscal year ended December 31, 1994.
<PAGE>
14
"Other Taxes": as defined in Section 4.13(a).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor
corporation.
"Person": an individual, a partnership, a corporation
(including a business trust), a joint stock company, a trust, an
unincorporated association, a joint venture or other entity or a
government or any agency or political subdivision thereof.
"Plan": any pension plan which is covered by Title IV of
ERISA and in respect of which CFC or a Commonly Controlled Entity is
an "employer" as defined in Section 3(5) of ERISA.
"Prohibited Transaction": any "prohibited transaction" as
defined in Section 406 of ERISA or Section 4975 of the Code.
"Rating Agencies": the collective reference to D&P, Fitch,
Moody's and S&P.
"Real Estate Business": the acquisition, development,
leasing, financing, management, maintenance and disposition of real
property, including, without limitation, automotive dealership
facilities and dealership site control arrangements.
"Reference Banks": the collective reference to the
Eurodollar Reference Banks, the Schedule I C$ Reference Banks and the
Schedule II C$ Reference Banks.
"Registers": the collective reference to the U.S. Register
and the Canadian Register.
"Related C$ Bank": as defined in the definition of "US$ Bank
Combined Commitment".
"Related US$ Bank": as defined in the definition of "US$
Bank Combined Commitment".
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Required Banks": at any date, Banks having at least 51% of
the aggregate amount of the Commitments at such date or, if the
Commitments have been terminated or for the purposes of determining
whether to accelerate the Loans pursuant to Section 9, the holders of
at least 51% of the outstanding principal amount of the Loans (US$
Equivalent).
"Required Canadian Banks": at any date, C$ Banks having at
least 51% of the aggregate amount of the Canadian Commitments at such
date.
"Required U.S. Banks": at any date, US$ Banks having at
least 51% of the aggregate amount of the U.S. Commitments at such
date.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or
<PAGE>
15
regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of
its property is subject.
"Responsible Officer": at any particular time, the Chairman
of the Board of Directors, the President, the chief financial
officer, the Vice President-Corporate Finance and Development, the
Treasurer or the Controller of CFC or CCCL, as the case may be.
"S&P": Standard & Poor's Ratings Group, and its successors.
"Schedule I C$ Bank": any C$ Bank named on Schedule I to the
Bank Act (Canada).
"Schedule I Reference C$ Banks": the collective reference to
Royal, Canadian Imperial Bank of Commerce and The Bank of Nova
Scotia.
"Schedule II C$ Bank": any C$ Bank named on Schedule II to
the Bank Act (Canada).
"Schedule II Reference C$ Banks": the collective reference
to Chemical Bank of Canada, Credit Suisse Canada, Banque Nationale de
Paris (Canada) and The Dai-Ichi Kangyo Bank (Canada).
"Short Term Revolving Credit Agreement": (a) the Short Term
Revolving Credit Agreement, dated as of May 1, 1995, among CFC, CCCL,
the financial institutions from time to time parties thereto, the
Managing Agents parties thereto, Royal Bank of Canada, as Canadian
administrative agent, and Chemical Bank, as administrative agent, as
amended, supplemented, or otherwise modified from time to time, or
(b) if such Revolving Credit Agreement is refinanced, refunded or
otherwise replaced by another bank revolving credit agreement, such
agreement, as amended, supplemented or otherwise modified from time
to time.
"Significant Subsidiary": at the time of any determination
thereof, (a) CCCL, (b) any other Finance Subsidiary and (c) any other
Subsidiary of CFC the assets of which constitute at least 5% of the
consolidated assets of CFC and its Subsidiaries as stated on the
consolidated financial statements of CFC and its Subsidiaries for the
most recently ended fiscal quarter of CFC, provided, that the term
"Significant Subsidiary" shall not include any Special Purpose
Subsidiary.
"Single Employer Plan": any Plan which is not a
Multiemployer Plan.
"Special Purpose Subsidiary": any Subsidiary created for the
sole purpose of purchasing assets from CFC or any Finance Subsidiary
with the intention and for the purpose of using such assets in a
securitization transaction.
"Status": the existence of Level I Status, Level II Status,
Level III Status, Level IV Status or Level V Status, as the case may
be. For the purposes of this definition, "Status" will be set at the
lowest Level assigned to CFC by any Rating Agency, unless only one
Rating Agency has assigned such Level to CFC, in which case CFC's
Status will be set at the second lowest Level assigned to CFC by any
Rating Agency.
<PAGE>
16
"Statutory Reserves": a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum applicable
reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the
Federal Reserve Board and any other banking authority to which
Chemical is subject with respect to the Base CD Rate (as such term is
used in the definition of "Base Rate"), for new negotiable
nonpersonal time deposits in Dollars of over $100,000 with maturities
approximately equal to three months. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change
in any reserve percentage.
"Subsidiary": any corporation of which CFC or one or more
Subsidiaries or CFC and one or more Subsidiaries shall at the time
own shares of any class or classes (however designated) having voting
power for the election of at least a majority of the members of the
board of directors (or other governing body) of such corporation.
"Subsidiary Borrowers": the collective reference to CCCL and
the Foreign Subsidiary Borrowers.
"Subsidiary Borrower Obligations": with respect to each
Subsidiary Borrower, the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans made to such Subsidiary Borrower and interest accruing
after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to
such Subsidiary Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans made
to such Subsidiary Borrower and all other obligations and liabilities
of such Subsidiary Borrower to any Agent or to any Bank, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, this Agreement, any Foreign Currency Subfacility
or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements
of counsel to any Agent or to any Bank that are required to be paid
by such Subsidiary Borrower pursuant to this Agreement or any Foreign
Currency Subfacility) or otherwise.
"Taxes": as defined in Section 4.13(a).
"Termination Date": May 5, 2000, or, if such day is not a
Business Day, the next preceding Business Day.
"Type": as to any U.S. R/C Loan, its nature as a Base Rate
Loan or a Eurodollar Loan.
"Unrefunded C$ L/F Loans": as defined in Section 3.4(c).
"Unrefunded L/F Loans": the collective reference to
Unrefunded U.S. L/F Loans and Unrefunded C$ L/F Loans.
"Unrefunded U.S. L/F Loans": as defined in Section 2.3(c).
<PAGE>
17
"US$ Bank": each Bank designated as a "US$ Bank" on Schedule
I, as such Schedule may be modified from time to time pursuant to
Section 13.7 or 13.10.
"US$ Bank Combined Commitment": as to any US$ Bank, the sum
of (a) such Bank's U.S. Commitment and (b) if such Bank has a Related
C$ Bank, such Related C$ Bank's Canadian Commitment; provided, that
in the event that Loans shall be outstanding after the Commitments
shall have been terminated, the "US$ Bank Combined Commitment" of
each US$ Bank, on any day, shall be deemed to equal the aggregate
principal amount of the Loans (US$ Equivalent) made by such Bank (or,
if applicable, such Bank's Related C$ Bank), outstanding on such day.
For the purposes of this Agreement, (i) "Related C$ Bank" means, with
respect to any US$ Bank, as applicable, either (x) such Bank in its
capacity as a C$ Bank or (y) any subsidiary, affiliate, branch or
agency of such Bank which is a C$ Bank and (ii) "Related US$ Bank"
means, with respect to any C$ Bank, as applicable, either (x) such
Bank in its capacity as a US$ Bank or (y) any subsidiary, affiliate,
branch or agency of such Bank which is a US$ Bank. The entry by any
US$ Bank into any Foreign Currency Subfacility shall have no effect
on the amount of the US$ Bank Combined Commitment of such Bank.
"US$ Equivalent": on any date of determination, with respect
to any amount in Canadian Dollars or any Foreign Currency, the
equivalent in Dollars of such amount, determined by the relevant
Agent using the Canadian Exchange Rate or the Foreign Exchange Rate,
as applicable, then in effect with respect thereto as determined
pursuant to Section 3.6 or 11, respectively.
"U.S. Commitment": as to any US$ Bank, its obligation to
make U.S. R/C Loans and, in the case of U.S. L/F Banks, U.S. L/F
Loans to CFC hereunder in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such
Bank's name on Schedule I, as such amount may be changed from time to
time as provided herein.
"U.S. Commitment Percentage": as to any US$ Bank at any
time, the percentage of the aggregate U.S. Commitments then
constituted by such Bank's U.S. Commitment.
"U.S. L/F Bank": each US$ Bank that has agreed to make U.S.
L/F Loans hereunder as indicated on Schedule I, as such Schedule may
be modified from time to time pursuant to Section 13.7 or 13.11.
"U.S. L/F Loans": as defined in Section 2.3(a).
"U.S. Loans": the collective reference to the U.S. L/F Loans
and the U.S. R/C Loans.
"U.S. Net Commitment": at any date, with respect to any US$
Bank, the excess of (a) the U.S. Commitment of such Bank on such date
over (b) the Aggregate Foreign Extensions of Credit of such Bank on
such date.
"U.S. R/C Loans": as defined in Section 2.1(a).
"U.S. Register": as defined in Section 13.7(c).
"U.S. Utilization": for any Utilization Period, with respect
to the U.S. Commitments, the percentage equivalent of a fraction (a)
the numerator of which is the average daily
<PAGE>
18
principal amount of U.S. Loans outstanding during such Utilization
Period and (b) the denominator of which is the average daily amount
of the aggregate U.S. Net Commitments of all US$ Banks during such
Utilization Period.
"Utilization Period": (a) each fiscal quarter of CFC and (b)
any portion of a fiscal quarter of CFC ending on the Final Date.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to CFC and its
Subsidiaries not defined in Section 1.1, and accounting terms partly defined
in Section 1.1 to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and Section,
schedule and exhibit references are to this Agreement unless otherwise
specified.
SECTION 2. THE U.S. COMMITMENTS
2.1 The U.S. Commitments. (a) Subject to the terms and
conditions hereof, each US$ Bank severally agrees to make revolving credit
loans ("U.S. R/C Loans") to CFC from time to time during the Commitment
Period. During the Commitment Period, CFC may use the U.S. Commitment of each
US$ Bank by borrowing, prepaying or repaying the U.S. R/C Loans of such Bank,
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary contained in this
Agreement, in no event may U.S. R/C Loans be borrowed under this Section 2.1
if, after giving effect thereto and the application of the proceeds thereof,
the aggregate principal amount of U.S. Loans made by any US$ Bank then
outstanding would exceed such Bank's U.S. Net Commitment.
(b) U.S. R/C Loans may be Base Rate Loans or Eurodollar
Loans, as determined by CFC and notified to the Administrative Agent in
accordance with Section 2.2, provided that no Eurodollar Loans shall be made
after the day which is seven days prior to the Termination Date.
2.2 Procedure for Borrowing. CFC may borrow under Section
2.1 during the Commitment Period on any Business Day, provided that CFC shall
give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time,
(i) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, and (ii) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans) specifying (A) the amount to be
borrowed, (B) the requested Borrowing Date, (C) the Type(s) of U.S. R/C Loans
to be borrowed, and (D) the length of the Interest Period for any Eurodollar
Loan. Upon receipt of such notice, the Administrative Agent shall promptly
notify each US$ Bank thereof. Not later than 2:00 P.M., New York City time, on
the Borrowing Date specified in such notice, each US$ Bank shall (subject to
Section 13.3(b)) deposit in its Clearing Account an amount in immediately
available funds equal to the amount of the U.S. R/C Loan to be made by such
Bank pursuant to Section 2.1. The Administrative Agent shall, pursuant to
Section 13.3(a), cause such
<PAGE>
19
amount to be withdrawn from each such Clearing Account and shall make the
aggregate amount so withdrawn available to CFC by depositing the proceeds
thereof in the account of CFC with the Administrative Agent on the date such
Loans are made for transmittal by the Administrative Agent upon CFC's request.
Each borrowing pursuant to Section 2.1 shall be in an aggregate principal
amount of the lesser of (i) $50,000,000 or an integral multiple of $1,000,000
in excess thereof or (ii) the then aggregate Available U.S. Commitments.
2.3 U.S. L/F Loans. (a) Subject to the terms and conditions
hereof, each U.S. L/F Bank severally agrees to make liquidity loans (the "U.S.
L/F Loans") to CFC from time to time during the Commitment Period in
accordance with the procedures set forth in this Section 2.3. Amounts borrowed
by CFC under this Section 2.3 may be repaid and, to but excluding the
Termination Date, reborrowed. All U.S. L/F Loans shall at all times be Base
Rate Loans. CFC shall give the Administrative Agent irrevocable notice of any
U.S. L/F Loans requested hereunder (which notice must be received by the
Administrative Agent prior to 12:00 noon, New York City time, on the requested
Borrowing Date) specifying (A) the amount to be borrowed and (B) the requested
Borrowing Date. Upon receipt of such notice, the Administrative Agent shall
promptly notify each U.S. L/F Bank thereof. Not later than 2:30 P.M., New York
City time, on the Borrowing Date specified in such notice each U.S. L/F Bank
shall make the amount of its U.S. L/F Loan available to the Administrative
Agent for the account of CFC at the office of the Administrative Agent set
forth in Section 13.2 in funds immediately available to the Administrative
Agent. The proceeds of such borrowing will then be made available to CFC by
the Administrative Agent crediting the account of CFC on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the U.S. L/F Banks and in like funds as received by the
Administrative Agent. Each borrowing pursuant to this Section 2.3 shall be in
an aggregate principal amount of the lesser of (i) $50,000,000 or an integral
multiple of $1,000,000 in excess thereof and (ii) the then aggregate Available
U.S. Commitments of the U.S. L/F Banks. Notwithstanding anything to the
contrary contained in this Agreement, in no event may U.S. L/F Loans be
borrowed under this Section 2.3 if, after giving effect thereto and the
application of the proceeds thereof, the aggregate principal amount of U.S.
Loans made by any US$ Bank then outstanding would exceed such Bank's U.S. Net
Commitment.
(b) Notwithstanding the occurrence of any Default or Event
of Default or noncompliance with the conditions precedent set forth in Section
6, if any U.S. L/F Loans shall remain outstanding at 10:00 A.M., New York City
time, on the fourth Business Day following the Borrowing Date thereof and if
by such time on such fourth Business Day the Administrative Agent shall have
received neither (i) a notice of borrowing delivered pursuant to Section 2.2
requesting that U.S. R/C Loans be made pursuant to Section 2.1 on the
immediately succeeding Business Day in an amount at least equal to the
aggregate principal amount of such U.S. L/F Loans, nor (ii) any other notice
indicating CFC's intent to repay such U.S. L/F Loans with funds obtained from
other sources, the Administrative Agent shall be deemed to have received a
Notice of Borrowing from CFC pursuant to Section 2.2 requesting that U.S. R/C
Loans (which shall be Base Rate Loans) be made pursuant to Section 2.1 on such
immediately succeeding Business Day in an amount equal to the aggregate amount
of such U.S. L/F Loans, and the procedures set forth in Section 2.2 shall be
followed in making such U.S. R/C Loans. The proceeds of such U.S. R/C Loans
shall be applied to repay such U.S. L/F Loans.
(c) If, for any reason, U.S. R/C Loans may not be made
pursuant to Section 2.3(b) to repay U.S. L/F Loans as required by such
Section, effective on the date such U.S. R/C Loans would otherwise have been
made, each US$ Bank severally agrees that it shall unconditionally and
irrevocably, without regard to the occurrence of any Default or Event of
Default, purchase a participating interest in such U.S. L/F Loans ("Unrefunded
U.S. L/F Loans") in an amount equal to the amount of the U.S. R/C Loan which
would otherwise have been made by such Bank pursuant to
<PAGE>
20
Section 2.3(b). Each US$ Bank will immediately transfer to the Administrative
Agent, in immediately available funds, the amount of its participation, and
the proceeds of such participation shall be distributed by the Administrative
Agent to each U.S. L/F Bank in such amount as will reduce the amount of the
participating interest retained by such U.S. L/F Bank in its U.S. L/F Loans to
the amount of the U.S. R/C Loan which would otherwise have been made by such
Bank pursuant to Section 2.3(b). Each US$ Bank shall share on a pro rata basis
(calculated by reference to its participating interest in such U.S. L/F Loans)
in any interest which accrues thereon and in all repayments thereof. All
payments in respect of Unrefunded U.S. L/F Loans and participations therein
shall be made in accordance with Section 4.8.
2.4 Conversion and Continuation Options. (a) CFC may elect
from time to time to convert Eurodollar Loans to Base Rate Loans, by giving
the Administrative Agent at least two Business Days' prior irrevocable notice
of such election, provided that any such conversion of Eurodollar Loans may
only be made on the last day of an Interest Period with respect thereto. CFC
may elect from time to time to convert Base Rate Loans (other than U.S. L/F
Loans) to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election. Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Administrative Agent shall promptly notify each US$ Bank thereof. All or
any part of outstanding Eurodollar Loans and Base Rate Loans (other than U.S.
L/F Loans) may be converted as provided herein, provided that (i) no Base Rate
Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
U.S. Banks have determined in its or their sole discretion that such
conversion is not appropriate and (ii) no Base Rate Loan may be converted into
a Eurodollar Loan after the date that is seven days prior to the Termination
Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by CFC
giving irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Required U.S. Banks have determined in its or their sole discretion that
such continuation is not appropriate or (ii) after the date that is seven days
prior to the Termination Date and provided, further, that if CFC shall fail to
give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to Base Rate Loans on the last day of such
then expiring Interest Period. Upon receipt of any notice given by CFC
pursuant to this Section 2.4(b), the Administrative Agent shall promptly
notify each US$ Bank thereof.
2.5 Minimum Amount of Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, payments,
prepayments, continuations and conversions of U.S. R/C Loans shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising any
Eurodollar Tranche shall not be less than $50,000,000.
2.6 Certain Matters Relating to Eurodollar Loans. (a) In the
event that (i) the Administrative Agent determines (which determination shall
be conclusive and binding upon CFC) that by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate in respect of any Eurodollar Loans, or (ii)
the Required U.S. Banks determine (which determination shall be conclusive and
binding upon CFC) and shall notify the
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21
Administrative Agent that the rates of interest referred to in the definition
of "Eurodollar Rate" as the basis upon which the rate of interest for
Eurodollar Loans is to be determined do not adequately cover the cost to the
US$ Banks of making or maintaining Eurodollar Loans, in each case with respect
to any proposed U.S. R/C Loan that CFC has requested be made as a Eurodollar
Loan, the Administrative Agent shall forthwith give facsimile transmission or
other written notice of such determination to CFC and the US$ Banks at least
one Business Day prior to the requested Borrowing Date for such Eurodollar
Loan. If such notice is given, any requested borrowing of a Eurodollar Loan
shall be made as a Base Rate Loan. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made.
(b) Upon notice from any Affected Bank (as hereinafter
defined), CFC shall pay to the Administrative Agent for the account of such
Affected Bank an additional amount for each Eurodollar Loan of such Affected
Bank, payable on the last day of the Interest Period with respect thereto,
equal to
P X [[R / (1.00 - r)] - R] X [T / 360]
Where P = the principal amount of such Eurodollar Loan of such Bank;
R = the Eurodollar Rate (expressed as a decimal)
for such Interest Period;
T = the number of days in such Interest Period during
which such Bank was an "Affected Bank"; and
r = the aggregate of rates (expressed as a decimal) of
reserve requirements current on the date two Business
Days prior to the beginning of such Interest Period
(including, without limitation, basic, supplemental,
marginal and emergency reserves) under any regulations
of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto, as
now and from time to time hereafter in effect, dealing
with reserve requirements prescribed for eurocurrency
funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Federal Reserve
Board) maintained by a member bank of the Federal
Reserve System.
The term "Affected Bank" shall mean any US$ Bank party to
this Agreement that is (i) organized under the laws of the United States or
any State thereof or (ii) a bank organized under laws other than those of the
United States of America or a State thereof that is funding its Eurodollar
Loans through a branch or agency located in the United States of America. Each
US$ Bank agrees to notify the Administrative Agent (A) by appropriate
notification on its Addendum in the case of each original US$ Bank party
hereto and (B) in the case of each New Bank, and each assignee pursuant to
Section 13.7(a) that is not already a US$ Bank, upon its becoming a party
hereto as a US$ Bank, whether or not it is an Affected Bank, and of any
subsequent change of status, disclosing the effective date of such change.
(c) Upon the occurrence of any of the events specified in
Section 2.6(a), each US$ Bank whose Eurodollar Loans are affected by any such
event agrees that it will transfer its Eurodollar Loans affected by any such
event to another branch office (or, if such Bank so elects, to an affiliate)
of such Bank, provided that such transfer shall be made only if such Bank
shall have determined in good faith (which determination shall, absent
manifest error, be final, conclusive and binding upon all
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22
parties) that, (i) on the basis of existing circumstances, such transfer will
avoid such events and will not result in any additional costs, liabilities or
expenses to such Bank or to CFC and (ii) such transfer is otherwise consistent
with the interests of such Bank.
SECTION 3. THE CANADIAN COMMITMENTS
3.1 The Canadian Commitments. Subject to the terms and
conditions hereof, each C$ Bank severally agrees to make revolving credit
loans ("C$ R/C Loans") (which shall be C$ Prime Loans) to, and to accept
Bankers' Acceptances from, CCCL from time to time during the Commitment
Period. During the Commitment Period, CCCL may use the Canadian Commitment of
each C$ Bank by borrowing, prepaying or repaying the C$ R/C Loans or Bankers'
Acceptances of such Bank, in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. Notwithstanding anything to
the contrary contained in this Agreement, in no event may C$ R/C Loans or
Bankers' Acceptances be borrowed or issued under this Section 3.1 if, after
giving effect thereto and the application of the proceeds thereof, the
Aggregate Canadian Extensions of Credit of any C$ Bank then outstanding would
exceed such C$ Bank's Canadian Commitment.
3.2 Procedure for C$ R/C Loan Borrowing. CCCL may borrow C$
R/C Loans during the Commitment Period on any Business Day, provided that CCCL
shall give the Canadian Administrative Agent irrevocable notice (which notice
must be received by the Canadian Administrative Agent prior to 12:00 noon,
Toronto time, one Business Day prior to the requested Borrowing Date,
specifying (a) the amount to be borrowed and (b) the requested Borrowing Date.
Upon receipt of such notice, the Canadian Administrative Agent shall promptly
notify each C$ Bank thereof. Not later than 2:00 P.M., Toronto time, on the
Borrowing Date specified in such notice, each C$ Bank shall make the amount of
its share of such borrowing available to the Canadian Administrative Agent for
the account of CCCL at the office of the Canadian Administrative Agent
specified in Section 13.2 and in funds immediately available to the Canadian
Administrative Agent. Each borrowing pursuant to this Section 3.2 shall be in
an aggregate principal amount of the lesser of (i) C$5,000,000 or an integral
multiple of C$100,000 in excess thereof or (ii) the amount in C$ which has a
US$ Equivalent equal to the then aggregate Available Canadian Commitments.
3.3 Bankers' Acceptances. (a) CCCL may issue Bankers'
Acceptances denominated in C$, for purchase by the C$ Banks, each in
accordance with the provisions of this Section 3.3.
(b) Procedures.
(i) Notice. CCCL shall notify the Canadian Administrative
Agent by irrevocable written notice by 10:00 A.M., Toronto time, one
Business Day prior to the Borrowing Date in respect of any borrowing
by way of Bankers' Acceptances.
(ii) Minimum Borrowing Amount. Each borrowing by way of
Bankers' Acceptances shall be in a minimum aggregate face amount of
C$10,000,000.
(iii) Face Amounts. The face amount of each Bankers'
Acceptance shall be C$100,000 or any integral multiple thereof.
(iv) Term. Bankers' Acceptances shall be issued and shall
mature on a Business Day. Each Bankers' Acceptance shall have a term
of at least 30 days and not more than 365 days excluding days of
grace and shall mature on or before the Termination Date and shall be
in
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23
form and substance reasonably satisfactory to each C$ Bank.
Notwithstanding the foregoing sentence, Bankers' Acceptances may from
time to time be issued for a term of seven days if each C$ Bank
agrees at such time to accept Bankers' Acceptances with such term in
the amount determined by the Canadian Administrative Agent in respect
of such Bank in accordance with Section 3.3(b)(vii).
(v) Bankers' Acceptances in Blank. To facilitate the
acceptance of Bankers' Acceptances under this Agreement, CCCL shall,
upon execution of this Agreement and from time to time as required,
provide to the Canadian Administrative Agent drafts, in form
satisfactory to the Canadian Administrative Agent, duly executed and
endorsed in blank by CCCL in quantities sufficient for each C$ Bank
to fulfill its obligations hereunder. Each C$ Bank is hereby
authorized to issue such Bankers' Acceptances endorsed in blank in
such face amounts as may be determined by such Bank provided that the
aggregate amount thereof is equal to the aggregate amount of Bankers'
Acceptances required to be accepted by such Bank. No C$ Bank shall be
responsible or liable for its failure to accept a Bankers' Acceptance
if the cause of such failure is, in whole or in part, due to the
failure of CCCL to provide duly executed and endorsed drafts to the
Canadian Administrative Agent on a timely basis nor shall any C$ Bank
be liable for any damage, loss or other claim arising by reason of
any loss or improper use of any such instrument except loss or
improper use arising by reason of the gross negligence or willful
misconduct of such Bank, its officers, employees, agents or
representatives. Each C$ Bank shall maintain a record with respect to
Bankers' Acceptances (i) received by it from the Canadian
Administrative Agent in blank hereunder, (ii) voided by it for any
reason, (iii) accepted by it hereunder, (iv) purchased by it
hereunder and (v) cancelled at their respective maturities. Each C$
Bank further agrees to retain such records in the manner and for the
statutory periods provided in the various Canadian provincial or
federal statutes and regulations which apply to such Bank.
(vi) Execution of Bankers' Acceptances. Drafts of CCCL to be
accepted as Bankers' Acceptances hereunder shall be duly executed on
behalf of CCCL. Notwithstanding that any person whose signature
appears on any Bankers' Acceptance as a signatory for CCCL may no
longer be an authorized signatory for CCCL at the date of issuance of
a Bankers' Acceptance, such signature shall nevertheless be valid and
sufficient for all purposes as if such authority had remained in
force at the time of such issuance and any such Bankers' Acceptance
so signed shall be binding on CCCL.
(vii) Issuance of Bankers' Acceptances. Promptly following
receipt of a notice of borrowing by way of Bankers' Acceptances, the
Canadian Administrative Agent shall so advise the C$ Banks and shall
advise each C$ Bank of the face amount of each Bankers' Acceptance to
be accepted by it and the term thereof. The aggregate face amount of
Bankers' Acceptances to be accepted by a C$ Bank shall be determined
by the Canadian Administrative Agent by reference to the respective
Canadian Commitments of the C$ Banks, except that, if the face amount
of a Bankers' Acceptance, which would otherwise be accepted by a C$
Bank, would not be C$100,000 or an integral multiple thereof, such
face amount shall be increased or reduced by the Canadian
Administrative Agent in its sole and unfettered discretion to the
nearest integral multiple of C$100,000.
(viii) Acceptance of Bankers' Acceptances. Each Bankers'
Acceptance to be accepted by a C$ Bank shall be accepted at such
Bank's office referred to in its Addendum.
<PAGE>
24
(ix) Purchase of Bankers' Acceptances. CCCL may require any
C$ Bank to purchase promptly, and in any event no later than two
Business Days following written notice by CCCL to the Canadian
Administrative Agent, from CCCL, at the Applicable BA Discount Rate,
any Bankers' Acceptance accepted by it and provide to the Canadian
Administrative Agent the BA Discount Proceeds for the account of
CCCL. The Acceptance Fee payable by CCCL to such Bank under Section
3.3(d) in respect of each Bankers' Acceptance accepted and purchased
by such Bank shall be set off against the BA Discount Proceeds
payable by such Bank under this Section 3.3(b)(ix).
(x) Sale of Bankers' Acceptances. Each C$ Bank may at any
time and from time to time hold, sell, rediscount or otherwise
dispose of any or all Bankers' Acceptances accepted and purchased by
it.
(xi) Waiver of Presentment and Other Conditions. CCCL waives
presentment for payment and any other defense to payment of any
amounts due to a C$ Bank in respect of a Bankers' Acceptance accepted
by it pursuant to this Agreement which might exist solely by reason
of such Bankers' Acceptance being held, at the maturity thereof, by
such Bank in its own right and CCCL agrees not to claim any days of
grace if such Bank as holder sues CCCL on the Bankers' Acceptances
for payment of the amount payable by CCCL thereunder.
(c) With respect to each Bankers' Acceptance, CCCL shall
give irrevocable telephone or written notice (or such other method of
notification as may be agreed upon between the Canadian Administrative Agent
and CCCL) to the Canadian Administrative Agent at or before 2:00 P.M., Toronto
time, two Business Days prior to the maturity date of such Bankers' Acceptance
followed by written confirmation electronically transmitted to the Canadian
Administrative Agent on the same day, of CCCL's intention to issue a Bankers'
Acceptance on such maturity date (a "Refunding Bankers' Acceptance") to
provide for the payment of such maturing Bankers' Acceptance (it being
understood that payments by CCCL and fundings by the C$ Banks in respect of
each maturing Bankers' Acceptance and the related Refunding Bankers'
Acceptance shall be made on a net basis reflecting the difference between the
face amount of such maturing Bankers' Acceptance and the BA Discount Proceeds
(net of the applicable Acceptance Fee) of such Refunding Bankers' Acceptance).
Any repayment of Bankers' Acceptances must be made at or before 12:00 noon,
Toronto time, on the respective maturity dates of such Bankers' Acceptances.
If CCCL fails to give such notice, CCCL shall be deemed to have repaid such
maturing Bankers' Acceptances with funds obtained by way of C$ R/C Loans
commencing on the maturity date of such maturing Bankers' Acceptances.
(d) An Acceptance Fee shall be payable by CCCL to each C$
Bank in advance (in the manner specified in Section 3.3(b)(ix)) upon the
issuance of a Bankers' Acceptance to be accepted by such Bank calculated at
the rate per annum equal to the Applicable Margin, such Acceptance Fee to be
calculated on the face amount of such Bankers' Acceptance and to be computed
on the basis of the number of days in the term of such Bankers' Acceptance.
Subject to the additional amounts payable under Section 3.3(e), the amount of
Acceptance Fees to be paid as specified above shall be the amount which would
be due and payable if the Canadian Utilization for the term of the relevant
Bankers' Acceptance was less than 50%.
(e) On the first Business Day following the last day of each
Utilization Period, CCCL shall pay to the Canadian Administrative Agent, for
the ratable benefit of the C$ Banks an additional amount on account of
Acceptance Fees in respect of each Bankers' Acceptance outstanding during such
Utilization Period equal to an amount calculated by multiplying:
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25
(A) a fraction, the numerator of which is the number of days in
the term of the Bankers' Acceptance in such Utilization
Period and the denominator of which is the number of days in
the term of the Bankers' Acceptance; by
(B) the excess (if any) of (A) the amount of Acceptance Fees
which would have been payable in respect of such Bankers'
Acceptance had the Canadian Utilization at the time of the
issuance of such Bankers' Acceptance been the same as the
actual Canadian Utilization during such Utilization Period,
over (B) the amount of Acceptance Fees which actually were
paid in respect of such Bankers' Acceptance.
(f) Upon the occurrence of any Event of Default, and in
addition to any other rights or remedies of any C$ Bank and the Canadian
Administrative Agent hereunder, any C$ Bank or the Canadian Administrative
Agent as and by way of collateral security (or such alternate arrangement as
may be agreed upon by CCCL and such Bank or the Canadian Administrative Agent,
as applicable) shall be entitled to deposit and retain in an account to be
maintained by the Canadian Administrative Agent (bearing interest at the
Canadian Administrative Agent's rates as may be applicable in respect of other
deposits of similar amounts for similar terms) amounts which are received by
such Bank or the Canadian Administrative Agent from CCCL hereunder or as
proceeds of the exercise of any rights or remedies of any C$ Bank or the
Canadian Administrative Agent hereunder against CCCL, to the extent such
amounts may be required to satisfy any contingent or unmatured obligations or
liabilities of CCCL to the C$ Banks or the Canadian Administrative Agent, or
any of them hereunder.
3.4 C$ L/F Loans. (a) Subject to the terms and conditions
hereof, each C$ L/F Bank severally agrees to make liquidity loans (the "C$ L/F
Loans") to CCCL from time to time during the Commitment Period in accordance
with the procedures set forth in this Section 3.4. Amounts borrowed by CCCL
under this Section 3.4 may be repaid and, to but excluding the Termination
Date, reborrowed. All C$ L/F Loans shall at all times be C$ Prime Loans. CCCL
shall give the Canadian Administrative Agent irrevocable notice of any C$ L/F
Loans requested hereunder (which notice must be received by the Canadian
Administrative Agent prior to 12:00 noon, Toronto time, on the requested
Borrowing Date) specifying (A) the amount to be borrowed and (B) the requested
Borrowing Date. Upon receipt of such notice, the Canadian Administrative Agent
shall promptly notify each C$ L/F Bank thereof. Not later than 2:30 P.M.,
Toronto time, on the Borrowing Date specified in such notice each C$ L/F Bank
shall make the amount of its C$ L/F Loan available to the Canadian
Administrative Agent for the account of CCCL at the office of the Canadian
Administrative Agent set forth in Section 13.2 in funds immediately available
to the Canadian Administrative Agent. The proceeds of such borrowing will then
be made available to CCCL by the Canadian Administrative Agent crediting the
account of CCCL on the books of such office with the aggregate of the amounts
made available to the Canadian Administrative Agent by the C$ L/F Banks and in
like funds as received by the Canadian Administrative Agent. Each borrowing
pursuant to this Section 3.4 shall be in an aggregate principal amount of the
lesser of (i) C$5,000,000 or an integral multiple of C$100,000 in excess
thereof and (ii) the amount in C$ which has a US$ Equivalent equal to the then
aggregate Available Canadian Commitments. Notwithstanding anything to the
contrary contained in this Agreement, in no event may C$ L/F Loans be borrowed
under this Section 3.4 if, after giving effect thereto and the application of
the proceeds thereof, the Aggregate Canadian Extensions of Credit of any C$
Bank then outstanding would exceed such Bank's Canadian Commitment. CCCL shall
reimburse each C$ L/F Bank for any increased cost over and above the Canadian
Prime Rate incurred by such C$ L/F Bank in connection with obtaining funds
from the Bank of Canada, as a lender of last resort, with respect to any C$
L/F Loan made by such C$ L/F Bank. If a C$ L/F Bank becomes entitled to claim
any additional amounts pursuant to the preceding sentence, it shall promptly
notify CCCL, through the Canadian Administrative Agent, of the event by reason
of which it has become so entitled. A
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26
certificate as to any such additional amounts payable submitted by a C$ L/F
Bank, through the Canadian Administrative Agent, to CCCL shall be conclusive
in the absence of manifest error.
(b) Notwithstanding the occurrence of any Default or Event
of Default or noncompliance with the conditions precedent set forth in Section
6, if any C$ L/F Loans shall remain outstanding at 10:00 A.M., Toronto time,
on the fourth Business Day following the Borrowing Date thereof and if by such
time on such fourth Business Day the Canadian Administrative Agent shall have
received neither (i) a notice of borrowing delivered pursuant to Section 3.2
requesting that C$ R/C Loans be made pursuant to Section 3.2 on the
immediately succeeding Business Day in an amount at least equal to the
aggregate principal amount of such C$ L/F Loans, nor (ii) any other notice
indicating CCCL's intent to repay such C$ L/F Loans with funds obtained from
other sources, the Canadian Administrative Agent shall be deemed to have
received a Notice of Borrowing from CCCL pursuant to Section 3.2 requesting
that C$ R/C Loans be made pursuant to Section 3.2 on such immediately
succeeding Business Day in an amount equal to the aggregate amount of such C$
L/F Loans, and the procedures set forth in Section 3.2 shall be followed in
making such C$ R/C Loans. The proceeds of such C$ R/C Loans shall be applied
to repay such C$ L/F Loans.
(c) If, for any reason, C$ R/C Loans may not be made
pursuant to Section 3.4(b) to repay C$ L/F Loans as required by such Section,
effective on the date such C$ R/C Loans would otherwise have been made, each
C$ Bank severally agrees that it shall unconditionally and irrevocably,
without regard to the occurrence of any Default or Event of Default, purchase
a participating interest in such C$ L/F Loans ("Unrefunded C$ L/F Loans") in
an amount equal to the amount of C$ R/C Loan which would otherwise have been
made by such Bank pursuant to Section 3.4(b). Each C$ Bank will immediately
transfer to the Canadian Administrative Agent, in immediately available funds,
the amount of its participation, and the proceeds of such participation shall
be distributed by the Canadian Administrative Agent to each C$ L/F Bank in
such amount as will reduce the amount of the participating interest retained
by such C$ L/F Bank in its C$ L/F Loans to the amount of the C$ R/C Loan which
would otherwise have been made pursuant to Section 3.4(b). Each C$ Bank shall
share on a pro rata basis (calculated by reference to its participating
interest in such C$ L/F Loans) in any interest which accrues thereon and in
all repayments thereof. All payments in respect of Unrefunded C$ L/F Loans and
participations therein shall be made in accordance with Section 4.8.
3.5 Conversion Option. Subject to the provisions of this
Agreement, CCCL may, prior to the Termination Date, effective on any Business
Day, convert, in whole or in part, C$ R/C Loans into Bankers' Acceptances or
vice versa upon giving to the Canadian Administrative Agent prior irrevocable
telephone or written notice within the notice period and in the form which
would be required to be given to the Canadian Administrative Agent in respect
of the category of C$ Loan into which the outstanding C$ Loan is to be
converted in accordance with the provisions of Section 3.2 or 3.3, as
applicable, followed by written confirmation on the same day, provided that:
(A) no C$ R/C Loan may be converted into a Bankers' Acceptance
when any Event of Default has occurred and is continuing and
the Canadian Administrative Agent has or the Required C$
Banks have determined in its or their sole discretion that
such conversion is not appropriate;
(B) each conversion to Bankers' Acceptances shall be for a
minimum aggregate amount of C$10,000,000 (and whole
multiples of C$100,000 in excess thereof) and each
conversion to C$ R/C Loans shall be in a minimum aggregate
amount of C$5,000,000; and
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27
(C) Bankers' Acceptances may be converted only on the maturity
date of such Bankers' Acceptances and, provided that, if
less than all Bankers' Acceptances are converted, then after
such conversion not less than C$10,000,000 (and whole
multiples of C$100,000 in excess thereof) shall remain as
Bankers' Acceptances.
3.6 Currency Fluctuations, etc. (a) No later than 2:00 P.M.,
Toronto time, on each Canadian Calculation Date, the Canadian Administrative
Agent shall (i) determine the Canadian Exchange Rate as of such date and (ii)
give notice thereof to CFC and CCCL. The Canadian Exchange Rate so determined
shall become effective on the first Business Day immediately following the
relevant Canadian Calculation Date (a "Canadian Reset Date") and shall remain
effective until the next succeeding Canadian Reset Date.
(b) No later than 2:00 P.M., New York City time, on each
Canadian Reset Date and each Borrowing Date in respect of C$ Loans, the
Canadian Administrative Agent shall (i) determine the US$ Equivalent of the C$
Loans then outstanding (after giving effect to any C$ Loans to be made or
repaid on such date) and (ii) notify CFC and CCCL of the results of such
determination.
(c) If, on any Canadian Reset Date (after giving effect to
(i) any C$ Loans to be made or repaid on such date and (ii) any increase or
decrease in any Canadian Commitment pursuant to Section 13.10 effective on
such date of which the Canadian Administrative Agent has received notice), the
Aggregate Canadian Extensions of Credit of any C$ Bank exceed the Canadian
Commitment of such Bank, then, within ten Business Days after notice thereof
from the Canadian Administrative Agent, (i) CCCL shall reduce the aggregate C$
Loans and/or (ii) CFC shall increase the Canadian Commitments pursuant to
Section 13.10 in an amount such that, after giving effect thereto, the
Aggregate Canadian Extensions of Credit of each C$ Bank shall be equal to or
less than the Canadian Commitment of such Bank.
(d) The Canadian Administrative Agent shall promptly furnish
the Administrative Agent and each affected C$ Bank with a copy of any notice
delivered to CFC or CCCL pursuant to this Section 3.6.
(e) Notwithstanding the foregoing provisions of this Section
3.6, after the initial Canadian Calculation Date, the Canadian Administrative
Agent may at its option suspend the resetting of the Canadian Exchange Rate
pursuant to Section 3.6(a) and the making of the determinations referred to in
Sections 3.6(b) and 3.6(c) during any period when the sum of the Aggregate
Canadian Extensions of Credit of all C$ Banks, calculated using the Canadian
Exchange Rate effective as of the last Canadian Reset Date prior to such
suspension, is less than 50% of the aggregate Canadian Commitments then in
effect.
SECTION 4. GENERAL PROVISIONS
4.1 Evidence of Debt. (a) Each Bank shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Facility Borrower to the appropriate lending office of
such Bank resulting from each Facility Loan made by such lending office of
such Bank from time to time, including the amounts of principal and interest
payable and paid to such lending office of such Bank from time to time under
this Agreement.
(b) Each Agent shall maintain a Register pursuant to Section
13.7(c), and a subaccount for each relevant Bank, in which Register and
subaccounts (taken together) shall be
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28
recorded (i) the amount of each relevant Facility Loan made hereunder, whether
such Loan is, as applicable, a U.S. R/C Loan, a U.S. L/F Loan, a C$ R/C Loan,
a Bankers' Acceptance or a C$ L/F Loan, the Type of each U.S. R/C Loan made
and the Interest Period applicable to any Eurodollar Loan, (ii) the amount of
any principal or interest due and payable or to become due and payable from
the relevant Facility Borrower to each relevant Bank hereunder and (iii) the
amount of any sum received by such Agent hereunder from the relevant Facility
Borrower and each relevant Bank's share thereof.
(c) The entries made in the Registers and accounts
maintained pursuant to paragraphs (a) and (b) of this Section 4.1 shall, to
the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the relevant Facility Borrower
therein recorded; provided, that the failure of any Bank or either Agent to
maintain such account, such Register or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of each Facility
Borrower to repay the Facility Loans (and all other amounts owing with respect
thereto) made to such Facility Borrower in accordance with the terms of this
Agreement.
4.2 Repayment of Loans. The relevant Facility Borrower shall
repay all outstanding Facility Loans (together with all accrued unpaid
interest thereon) on the last day of the Commitment Period.
4.3 Interest Rate and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period therefor on
the unpaid principal amount thereof at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period plus the Applicable
Margin.
(b) Each Base Rate Loan shall bear interest for each day on
the unpaid principal amount thereof, at a rate per annum equal to the Base
Rate determined for such day.
(c) Each C$ Prime Loan shall bear interest for each day on
the unpaid principal amount thereof, at a rate per annum equal to the Canadian
Prime Rate determined for such day.
(d) If all or a portion of (i) the principal amount of any
Facility Loan, (ii) any interest payable thereon or (iii) any Facility Fee,
Acceptance Fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section 4.3 plus 1% or (y) in the
case of any overdue interest, Facility Fee, Acceptance Fee or other amount,
the rate described in Section 4.3(b) (in the case of amounts payable in
Dollars) or 4.3(c) (in the case of amounts payable in C$) plus 1%, in each
case from the date of such non-payment to (but excluding) the date on which
such amount is paid in full (as well after as before judgment).
(e) Interest shall be payable in arrears (i) with respect to
Eurodollar Loans having an Interest Period of three months or less, on the
last day of such Interest Period, (ii) with respect to Eurodollar Loans having
an Interest Period longer than three months, on each day which is three
months, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period, (iii) with respect to Base
Rate Loans and C$ Prime Loans (other than L/F Loans which do not constitute
Unrefunded L/F Loans), on the last day of each March, June, September and
December, and (iv) with respect to all Facility Loans, upon each repayment,
prepayment or conversion thereof; provided that interest accruing pursuant to
Section 4.3(d) shall be payable on demand. Interest payable in respect of U.S.
Loans shall be payable in Dollars by CFC and interest payable in respect of C$
Loans shall be payable in C$ by CCCL (subject to Section 12).
<PAGE>
29
(f) The amount of interest on any Eurodollar Loans to be
paid on any date as specified in paragraph (e) above shall in each case be
determined under the assumption that the U.S. Utilization for the Utilization
Period(s) during which such interest accrued was less than 50%. On the first
Business Day following the last day of each Excess U.S. Utilization Period,
CFC shall pay to the Administrative Agent, for the benefit of the US$ Banks,
an additional amount of interest equal to the excess (if any) of (i) the
amount of interest which accrued during such U.S. Utilization Period after
giving effect to the actual U.S. Utilization for such Utilization Period
(whether or not such accrued interest was actually payable during such
Utilization Period) over (ii) the amount of interest which would have accrued
during such Utilization Period if the U.S. Utilization during such Utilization
Period had been less than 50%.
4.4 Lending Procedures. (a) Unless the relevant Agent shall
have received notice from a Bank prior to a Borrowing Date that such Bank will
not make available to such Agent such Bank's share of the borrowing requested
to be made on such Borrowing Date, such Agent may assume that such Bank has
made its share of such borrowing available to such Agent on such Borrowing
Date, and such Agent may, in reliance upon such assumption, make available to
the relevant Facility Borrower on such Borrowing Date a corresponding amount.
If such Agent does, in such circumstances, make available to such Facility
Borrower such amount, such Bank shall within three Business Days following
such Borrowing Date make its share of such borrowing available to such Agent,
together with interest thereon for each day from and including such Borrowing
Date that its share of such borrowing was not made available, to but excluding
the date such Bank makes its share of such borrowing available to such Agent,
at the Effective Federal Funds Rate (in the case of U.S. Loans) or at the then
effective Bank Rate (in the case of C$ Loans). If such amount is so made
available, such payment to such Agent shall constitute such Bank's Loan on
such Borrowing Date for all purposes of this Agreement. If such amount is not
so made available to the relevant Agent, then such Agent shall notify such
Facility Borrower of such failure, and, on the fourth Business Day following
such Borrowing Date, such Facility Borrower shall pay to such Agent such
amount, together with interest thereon for each day that such Facility
Borrower had the use of such ratable portion at the Effective Federal Funds
Rate (in the case of U.S. Loans) or at the then effective Bank Rate (in the
case of C$ Loans). Nothing contained in this Section 4.4(a) shall relieve any
Bank which has failed to make available its share of any borrowing hereunder
from its obligation to do so in accordance with the terms hereof.
(b) The failure of any Bank to make the Facility Loan to be
made by it on any Borrowing Date shall not relieve any other Bank of its
obligation, if any, hereunder to make its Loan on such Borrowing Date, but no
Bank shall be responsible for the failure of any other Bank to make the
Facility Loan to be made by such other Bank on such Borrowing Date.
4.5 Facility Fees. CFC agrees to pay to the Administrative
Agent, for the account of each US$ Bank, in Dollars, a facility fee (the
"Facility Fee") for each day from and including the Effective Date to but
excluding the later of (a) the last day of the Commitment Period and (b) the
date on which all of the Loans shall have been paid in full (such later date,
the "Final Date"). Such fee shall be payable quarterly in arrears on (i) the
first Business Day of each January, April, July and October (for the
three-month period (or portion thereof) ended on the last day of the
immediately preceding month) and (ii) on the Final Date (for the period ended
on such date for which no payment has been received pursuant to clause (i)
above) and shall be computed for each day during such period at a rate per
annum equal to the Facility Fee Rate in effect on such day on the US$ Bank
Combined Commitment of such Bank in effect on such day.
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30
4.6 Termination or Reduction of Commitments. CFC shall have
the right, upon not less than five Business Days' notice to each Agent, to
terminate the Commitments or, from time to time, to reduce the amount of the
U.S. Commitments (so long as, after giving effect thereto and any
contemporaneous prepayment of the Loans, the Aggregate U.S. Extensions of
Credit of each US$ Bank shall be no greater than such Bank's U.S. Net
Commitment) or reduce the amount of the Canadian Commitments (so long as,
after giving effect thereto and any contemporaneous prepayment of the C$
Loans, the Aggregate Canadian Extensions of Credit of each C$ Bank shall be no
greater than such Bank's Canadian Commitment). Upon receipt of such notice the
Administrative Agent shall promptly notify each relevant Bank thereof. Any
such reduction shall be in an amount of at least $100,000,000 (in the case of
the U.S. Commitments) or $10,000,000 (in the case of the Canadian Commitments)
and shall reduce permanently the amount of the affected Commitments then in
effect. Any termination of the Commitments shall be accompanied by prepayment
in full of the Loans, together with accrued interest thereon to the date of
such prepayment.
4.7 Optional Prepayments. Each Facility Borrower may at any
time and from time to time prepay the Facility Loans made to it hereunder, in
whole or in part, without premium or penalty, upon prior notice to the
relevant Agent (which notice must be received by the relevant Agent prior to
10:00 A.M., Local Time, (i) three Business Days prior to the repayment date in
the case of Eurodollar Loans and (ii) one Business Day prior to the repayment
date otherwise) specifying the date and amount of prepayment, and the category
or categories of Facility Loan to be prepaid; provided that, in the case of
any prepayment of L/F Loans, such notice may be delivered to the relevant
Agent as late as, but no later than 12:00 noon, Local Time, on the date of
such prepayment and provided, further, that each prepayment of Eurodollar
Loans on a day other than the last day of the related Interest Period shall
require the payment of any amounts payable by CFC pursuant to Section 4.12.
Upon receipt of any such notice, the relevant Agent shall promptly notify each
relevant Bank thereof. Any such notice shall be irrevocable, and the payment
amount specified in such notice shall be due and payable on the date
specified, together with accrued interest to such date on the amount prepaid.
Partial prepayments shall be in an aggregate principal amount of $25,000,000
or a multiple of $1,000,000 in excess thereof (in the case of U.S. Loans) and
C$5,000,000 or a multiple of $1,000,000 in excess thereof (in the case of C$
Prime Loans). Notwithstanding anything to the contrary above, Facility Loans
consisting of Bankers' Acceptances may not be prepaid pursuant to this Section
4.7.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of
U.S. R/C Loans or U.S. L/F Loans shall be made pro rata according to the then
existing Available U.S. Commitments of the US$ Banks or the U.S. L/F Banks,
respectively. Each borrowing of C$ R/C Loans or C$ L/F Loans shall be made pro
rata according to the then existing Canadian Commitments of the C$ Banks or
the C$ L/F Banks, respectively. Each payment of Facility Fees (except as a
result of an increase in a particular Bank's Facility Fee pursuant to Section
4.11(a)) shall be made pro rata according to the amounts of the then existing
US$ Bank Combined Commitments of the US$ Banks. Any reduction of the amount of
the Commitments of the Banks hereunder (except for the termination or
reduction of a particular Bank's Commitment pursuant to Section 4.11(a)) shall
be made pro rata according to the amounts of the then existing relevant
Commitments. Each payment (including each prepayment) by a Facility Borrower
on account of principal of and interest on (except for payments to a
particular Bank pursuant to Section 2.6, 4.10, 4.11, 4.12 or 4.13) any
category of Facility Loan (other than Eurodollar Loans) shall be made on a pro
rata basis according to the amounts of the then outstanding Facility Loans of
such type of the relevant Banks. Each payment (including each prepayment) by
CFC on account of principal of and interest on Eurodollar Loans designated by
CFC to be applied to a particular Eurodollar Tranche shall be made pro rata
according to the respective outstanding principal amounts of such Eurodollar
Loans then held by the US$ Banks. All payments (including prepayments) by the
relevant Facility Borrower hereunder on account of principal, interest, fees
and
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31
other amounts shall be made without setoff or counterclaim to the relevant
Agent for the account of the relevant Banks at the office of the relevant
Agent referred to in Section 13.2 in Dollars or C$, as applicable, in
immediately available funds. In the case of amounts relating to U.S. Loans,
the Administrative Agent shall promptly distribute such payments to each US$
Bank entitled to receive a portion thereof by causing such Bank's portion of
such payment to be deposited in such Bank's Clearing Account. If any payment
hereunder (other than a payment in respect of a Eurodollar Loan) becomes due
and payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another calendar
month in which event such payment shall be made on the immediately preceding
Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension. The provisions of the first
five sentences of this Section 4.8(a) shall not apply to any borrowing or
prepayment made pursuant to Section 13.10.
(b) Unless the relevant Agent shall have received notice
from the relevant Facility Borrower prior to the date on which any payment is
due to the relevant Banks hereunder that such Facility Borrower will not make
such payment in full, such Agent may assume that such Facility Borrower has
made such payment in full to such Agent on such date, and such Agent may, in
reliance upon such assumption, cause to be distributed to each such Bank on
such due date an amount equal to the amount then due to such Bank. If and to
the extent such Facility Borrower shall not have so made such payment in full
to such Agent, each such Bank shall repay to such Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from and including the date such amount is distributed to such Bank to but
excluding the date such Bank repays such amount to such Agent at the Effective
Federal Funds Rate (in the case of U.S. Loans) or the then effective Bank Rate
(in the case of C$ Loans) for each such day. Nothing contained in this Section
4.8(b) shall relieve either Facility Borrower from its obligations to make
payments on all amounts due hereunder in accordance with the terms hereof.
4.9 Computation of Interest and Fees. (a) Interest (other
than interest calculated on the basis of the Prime Rate or the Canadian Prime
Rate) shall be calculated on the basis of a 360-day year for the actual days
elapsed. Facility Fees, Acceptance Fees and interest calculated on the basis
of the Prime Rate or the Canadian Prime Rate shall be calculated on the basis
of a 365- (or 366-, as the case may be) day year for the actual days elapsed.
The relevant Agent shall, as soon as practicable, notify the relevant Facility
Borrower and the relevant Banks of each determination of the Eurodollar Rate
or the Applicable BA Discount Rate. Any change in the interest rate in respect
of a Facility Loan or in any Facility Fee or Acceptance Fee resulting from a
change in the Base Rate, the Canadian Prime Rate, the Applicable Margin or
Status shall become effective as of the opening of business on the day on
which a change in the Base Rate or Canadian Prime Rate shall become effective
or such Applicable Margin or Status changes as provided herein, as the case
may be. The relevant Agent shall notify the relevant Facility Borrower and the
relevant Banks of the effective date and the amount of each such change in the
Base Rate or Canadian Prime Rate.
(b) Each determination, pursuant to and in accordance with
any provision of this Agreement, of the Eurodollar Rate or the Applicable BA
Discount Rate by the relevant Agent, and each determination by a Reference
Bank of a rate with respect to a Eurodollar Loan or a Bankers' Acceptance to
be notified to the relevant Agent pursuant to the definition of "Eurodollar
Rate" or "Applicable BA Discount Rate", as the case may be, shall be
conclusive and binding on the Facility Borrowers and the Banks in the absence
of manifest error. The relevant Agent shall, at the request of
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32
the relevant Facility Borrower, deliver to such Facility Borrower a statement
showing any quotations given by the relevant Reference Banks and the
computations used by such Agent in determining any Eurodollar Rate or
Applicable BA Discount Rate.
(c) If any Reference Bank's relevant Commitment shall
terminate (otherwise than on termination of all the Commitments) or, as the
case may be, the relevant Facility Loans made by it hereunder are assigned, or
prepaid or repaid (otherwise than on the prepayment or repayment of the
relevant Facility Loans among the Banks) for any reason whatsoever, such
Reference Bank shall thereupon cease to be a Reference Bank, and if, as a
result of the foregoing, there shall be only one Reference Bank of a
particular category remaining, then the relevant Agent (after consultation
with the relevant Facility Borrower and the relevant Banks) shall, as soon as
practicable thereafter, by notice to the Facility Borrowers and the relevant
Banks, designate another Bank that is willing to act as a Reference Bank so
that there shall at all times be at least two Reference Banks of each
category. In acting so to designate another Bank to serve as a Eurodollar
Reference Bank, the Administrative Agent will use its best efforts to ensure
that one Eurodollar Reference Bank will, at all times, be a US$ Bank that has
its headquarters office located outside the United States.
(d) If any of the Reference Banks shall be unable or shall
otherwise fail to provide notice of a rate to the relevant Agent upon its
request, the Eurodollar Rate or Applicable BA Discount Rate, as applicable,
shall be determined on the basis of rates provided in notices of the remaining
relevant Reference Banks.
4.10 Increased Costs. In the event that any law, regulation,
treaty or directive or any change therein or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority enacted or made subsequent to the date hereof:
(a) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for
the account of, advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of such Bank; or
(b) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining advances or extensions of credit hereunder to either
Facility Borrower or to reduce any amounts receivable hereunder from either
Facility Borrower (such increase in cost or reduction in amounts receivable,
"Increased Costs") then, in any such case, such Facility Borrower shall
promptly pay to the relevant Agent for the account of such Bank, upon the
written demand of such Bank to such Facility Borrower (with a copy to the
relevant Agent), so long as such Increased Costs are not otherwise included in
the amounts required to be paid to such Bank pursuant to Section 2.6(b), 4.11,
4.12 or 4.13, any additional amounts necessary to compensate such Bank for
such Increased Costs which such Bank deems to be material as determined by
such Bank with respect to its Eurodollar Loans or Bankers' Acceptances, as the
case may be. If a Bank becomes entitled to claim any additional amounts
pursuant to this Section 4.10, it shall promptly notify the relevant Facility
Borrower, through the relevant Agent, of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by a Bank, through the relevant
Agent, to the relevant Facility Borrower shall be conclusive in the absence of
manifest error.
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33
4.11 Changes in Capital Requirements. (a) In the event that,
in the opinion of counsel for any Bank (which may, in the discretion of such
Bank, be such Bank's internal counsel), compliance with any law, rule,
regulation or guideline, or any change therein or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or Governmental
Authority enacted or made subsequent to the date hereof shall affect the
amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank and the amount of such capital that is
required or expected to be maintained is increased by or based upon the
Commitment of such Bank under this Agreement or any participation agreement
entered into pursuant to Section 13.7, as applicable (such event, a "Change in
Law"), such affected Bank shall notify CFC and the Administrative Agent within
180 days after such affected Bank shall have obtained actual knowledge of the
costs associated with its compliance with such Change in Law (but in no event
later than 365 days after such Bank is first required to comply with such
Change in Law). At the time of such notification such affected Bank shall
provide CFC with a written statement setting forth the amount that would
adequately compensate such affected Bank for the costs associated with its
compliance with such Change in Law and setting forth in reasonable detail the
assumptions upon which such affected Bank calculated such amount, and a copy
of the opinion of counsel referred to in the preceding sentence. Such affected
Bank shall allocate to the Facility Borrowers the costs associated with such
Change in Law in such a way that the proportion of (i) such costs that are
allocated to the Facility Borrowers to (ii) the total of such costs of such
affected Bank associated with such Change in Law as it relates to all
commitments of such Bank to its customers of similar creditworthiness as the
Facility Borrowers, is substantially the same as the proportion of (i) the
Commitment of such affected Bank under this Agreement or such participation
agreement to (ii) the total of all commitments by such affected Bank to its
customers of similar creditworthiness as the Facility Borrowers. CFC and such
affected Bank shall thereafter negotiate in good faith an agreement to
increase that portion of the Facility Fee payable to such affected Bank under
Section 4.5 to a level, which, in the opinion of such affected Bank, will
adequately compensate such affected Bank for such costs. If such increase is
approved in writing by CFC within 90 days from the date of the notice to CFC
from such affected Bank, the Facility Fee payable by CFC shall, effective from
the date of such Change in Law (but subject to the last sentence of this
Section 4.11(a)) include the amount of such agreed increase, and CFC will so
notify the Administrative Agent. If CFC and such affected Bank are unable to
agree on such an increase within 90 days from the date of the notice to CFC
from such affected Bank, CFC shall by written notice to such affected Bank
within 120 days from the date of the aforesaid notice to CFC from such
affected Bank, elect either to (a) terminate the Commitment of such affected
Bank (each such Bank, a "Terminated Bank") (subject to the last sentence of
this Section 4.11(a)) or (b) (subject to the next to last sentence of this
Section 4.11(a)) increase the Facility Fee payable to such affected Bank by
the amount requested by such affected Bank. Without limiting the foregoing, if
CFC elects to take the action described in clause (b) of the preceding
sentence, it may simultaneously therewith reduce the Commitment of such
affected Bank by an amount chosen by CFC. If CFC fails to provide notice to
such affected Bank as described in the second preceding sentence by such 120th
day, CFC shall be deemed to have taken the action described in clause (b) of
such second preceding sentence. CFC (A) may from time to time after such 120th
day reduce the compensation to be received pursuant to this Section 4.11(a) by
any affected Bank as a result of any Change in Law, to the average
compensation (the "Average Compensation") CFC has agreed, as provided above,
to pay the affected Banks as a result of such Change in Law (such average
compensation to be measured by a percentage of the aggregate Commitments of
such affected Banks) and (B) shall pay to each Terminated Bank, on the date
the Commitment of such Bank is terminated, an amount equal to the excess, if
any, of (i) the lesser of (x) the aggregate Facility Fee that would have been
payable to such Bank, from the date of such Terminated Bank's notice to CFC
pursuant to this Section 4.11(a) to the date the Commitment of such Terminated
Bank is terminated, had such Facility Fee been determined by reference to the
Average Compensation and (y)
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34
the aggregate Facility Fee that would have been payable to such Bank during
such period had such Facility Fee been increased by an amount necessary to
adequately compensate such Bank (as determined by such Bank in accordance with
the applicable provisions of this Section 4.11(a)) for the costs attributable
to the relevant Change in Law over (ii) the aggregate Facility Fee actually
paid to such Bank during such period.
(b) On the day the Commitment of a Terminated Bank is
terminated pursuant to Section 4.11(a), CFC or the relevant Subsidiary
Borrower, as applicable, shall (i) repay all Loans and other amounts
(including accrued interest and Facility Fees) owing to such Terminated Bank,
(ii) be liable to such Terminated Bank under Section 4.12 if any Eurodollar
Loans owing to such Terminated Bank shall be repaid other than on the last day
of the Interest Period relating to such Eurodollar Loan, and (iii) in the case
of CCCL, pay to such Terminated Bank an amount equal to the maximum aggregate
amount of CCCL's obligations pursuant to any Bankers' Acceptance accepted by
such Terminated Bank, which amount shall be held by such Terminated Bank in an
interest bearing account as collateral security for CCCL's obligations to such
Terminated Bank with respect to any such Bankers' Acceptance, and CCCL shall
execute in favor of such Terminated Bank a cash collateral agreement (or such
alternate arrangement as may be agreed upon by CCCL and such Terminated Bank)
in form and substance satisfactory to such Terminated Bank in respect of such
amount.
(c) Upon the occurrence of any Change in Law each Bank whose
Commitment hereunder is affected by such Change in Law shall transfer its
Commitment to another branch office (or, if such Bank so elects, to an
affiliate) of such Bank, provided that such transfer shall be made only if
such Bank shall have determined in good faith (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) that
(i) on the basis of existing circumstances, such transfer will avoid the
increased costs resulting from such Change in Law and will not result in any
additional costs, liabilities or expenses to such Bank (unless CFC agrees to
pay such additional costs, liabilities or expenses of such Bank) and (ii) such
transfer is otherwise consistent with the interests of such Bank.
4.12 Indemnity. Each of CFC and CCCL, as applicable, agrees
to indemnify each Bank and to hold such Bank harmless from any loss or expense
(including, but not limited to, any such loss or expense arising from interest
or fees payable by such Bank to lenders of funds obtained by it in order to
maintain its Eurodollar Loans hereunder, but excluding loss of the Applicable
Margin), which such Bank may sustain or incur as a consequence of (a) failure
by either Facility Borrower in making any payment when due (whether by
acceleration or otherwise) of the principal amount of or interest on the
Eurodollar Loans or Bankers' Acceptances of such Bank, (b) failure by either
Facility Borrower to make a borrowing consisting of Eurodollar Loans or
Bankers' Acceptances, or a conversion into or continuation of Eurodollar Loans
or Bankers' Acceptances, after such Facility Borrower has given a notice
requesting or accepting the same in accordance with the provisions of this
Agreement, (c) failure by either Facility Borrower in making any prepayment
after such Facility Borrower has given a notice in accordance with this
Agreement and (d) a payment or prepayment of a Eurodollar Loan on a day that
is not the last day of the Interest Period with respect thereto. In the case
of Eurodollar Loans, such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such payment, prepayment or of such failure to borrow,
convert or continue to the last day of the relevant Interest Period (or
proposed Interest Period), in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin)
over (ii) the amount of interest (as reasonably determined by such Bank) which
would have accrued to such Bank on such amount by placing such amount on
deposit for a
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35
comparable period with leading banks in the interbank eurodollar market. The
agreements in this Section 4.12 shall survive the payment of the Facility
Loans and all other amounts payable hereunder.
4.13 Taxes. (a) In the event that the adoption of any law,
regulation, treaty or directive or any change therein or in the interpretation
or application thereof, in each case after the date hereof, shall require any
Taxes (as hereinafter defined) to be withheld or deducted from any amount
payable to any Bank under this Agreement, upon notice by such Bank to the
relevant Facility Borrower (with a copy to the relevant Agent) to the effect
that (i) as a result of the adoption of such law, rule, regulation, treaty or
directive or a change therein or in the interpretation thereof, Taxes are
being withheld or deducted from amounts payable to such Bank under this
Agreement and (ii) such Bank has taken all action required to be taken by it
to avoid the imposition of such Taxes pursuant to paragraph (c) of this
Section 4.13 prior to demanding indemnification under this paragraph (a), such
Facility Borrower will pay to the relevant Agent for the account of such Bank
additional amounts so that such additional amounts, together with amounts
otherwise payable under this Agreement, will yield to such Bank, after
deduction from such increased amount of all Taxes required to be withheld or
deducted therefrom, the amount stated to be payable under this Agreement. The
term "Taxes" shall mean all net income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, imposed, levied, collected,
withheld or assessed by any country (or by any political subdivision or taxing
authority thereof or therein), excluding, with respect to any Bank, net income
and franchise taxes imposed with respect to net income of any country (or any
political subdivision or taxing authority thereof or therein) where such Bank
is organized or, in respect of such Bank's Eurodollar Loans, by the country
(or any political subdivision or tax authority thereof or therein) where such
Bank's Eurodollar Loans are booked and, in respect of such Bank's Base Rate
Loans, by the country (or any political subdivision or tax authority thereof
or therein) where such Bank's Base Rate Loans are booked (such excluded taxes,
"Other Taxes"). If the relevant Facility Borrower fails to pay any Taxes when
due following notification by any Bank as provided above, such Facility
Borrower shall indemnify such Bank for any incremental taxes, interest or
penalties that may become payable by any Bank as a result of any such failure
by such Facility Borrower to make such payment. Either Facility Borrower may,
upon payment by such Facility Borrower to any Bank claiming indemnification
under this paragraph (a) of any amount payable by such Facility Borrower to
such Bank, elect by not less than four Business Days' prior written notice to
such Bank to terminate the Commitment of such Bank and prepay or cash
collateralize (in the case of Bankers' Acceptances) the outstanding Facility
Loans of such Bank.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to CFC
and the Administrative Agent (i) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or any successor applicable form,
as the case may be, and (ii) an Internal Revenue Service Form W-8 or W-9 or
any successor form. Each such Bank also agrees to deliver to CFC and the
Administrative Agent two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable forms or other manner of certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to CFC, and such extensions or renewals
thereof as may reasonably be requested by CFC or the Administrative Agent,
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank so advises CFC and the Administrative
Agent. Such Bank shall certify (i) in the case of Form 1001 or 4224, that it
is entitled to receive payments under this Agreement without deduction or
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36
withholding of any United States federal income taxes and (ii) in the case of
a Form W-8 or W-9, that it is entitled to an exemption from United States
backup withholding tax.
(c) No Bank may request indemnification for any Taxes from
either Facility Borrower under paragraph (a) of this Section 4.13 to the
extent that such Taxes would have been avoided or reduced by such Bank's
transfer of its Facility Loans affected by such event to another office of
such Bank (or to an affiliate of such Bank), by such Bank's properly claiming
the benefit of any exemption from or reduction of such Taxes (whether provided
by statute, treaty or otherwise), including, without limitation, by delivering
the forms required by paragraph (b) of this Section 4.13, or by such Bank's
taking any other action which in its judgment is reasonable to avoid or reduce
such Taxes, provided that such Bank shall not be required to (i) take any
action which in the reasonable judgment of such Bank could directly or
indirectly result in any increased cost or expense or in any loss of
opportunity to such Bank unless the relevant Facility Borrower shall have
provided to such Bank indemnity or reimbursement therefor in form and
substance reasonably satisfactory to such Bank or (ii) claim or apply any tax
credit against such Taxes.
(d) Within 30 days after the payment by either Facility
Borrower of any Taxes withheld or deducted from any amount payable to any Bank
under this Agreement, and irrespective of whether such Bank is entitled to
demand indemnification in respect thereof under paragraph (a) above, such
Facility Borrower will furnish to such Bank (with a copy to the relevant
Agent), the original or a certified copy of a receipt evidencing payment
thereof.
4.14 Use of Proceeds. The proceeds of the Facility Loans
shall be used by each Facility Borrower for general corporate purposes.
4.15 Replacement of Banks. CFC shall be permitted to replace
any Bank which (a) requests reimbursement for amounts owing pursuant to
Section 2.6, 4.10, 4.11, 4.13 or 13.6(c)(i) or (b) defaults in its obligation
to make Facility Loans, with a replacement Commercial Bank; provided that (i)
such replacement does not conflict with any Requirement of Law, (ii) no Event
of Default shall have occurred and be continuing at the time of such
replacement, (iii) the relevant Facility Borrower or Foreign Subsidiary
Borrower shall repay (or the replacement Commercial Bank shall purchase, at
par) all Loans (other than Bankers' Acceptances) and other amounts (including
accrued interest) owing to such replaced Bank concurrently with such
replacement, (iv) in the case of any replaced C$ Banks, (x) CCCL shall pay to
such replaced Bank an amount equal to the maximum aggregate amount of CCCL's
obligations pursuant to any Bankers' Acceptance accepted by such replaced
Bank, which amount shall be held by such replaced Bank in an interest bearing
account as collateral security for CCCL's obligations to such replaced Bank
with respect to such Bankers' Acceptance, and CCCL shall execute in favor of
such replaced Bank a cash collateral agreement (or such alternate arrangement
as may be agreed upon by CCCL and such replaced Bank) in form and substance
satisfactory to such replaced Bank in respect of such amount and (y) CCCL
shall give the Canadian Administrative Agent notice of the provision of any
such collateral security, (v) CFC shall be liable to such replaced Bank under
Section 4.12 if any Eurodollar Loan owing to such replaced Bank shall be
prepaid (or purchased) other than on the last day of the Interest Period
relating thereto, (vi) the replacement Commercial Bank, if not already a Bank,
and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (vii) the replaced Bank shall be
obligated to make such replacement in accordance with the provisions of
Section 13.7 (provided that CFC shall be obligated to pay the registration and
processing fee referred to therein), (viii) until such time as such
replacement shall be consummated, the Facility Borrowers shall pay all
additional amounts (if any) required pursuant to Section 2.6, 4.10, 4.11, 4.13
or 13.6(c)(i), as the case may be, (ix) any replacement of a Bank which
requests reimbursement for amounts owing pursuant to Section 13.6(c)(i)
<PAGE>
37
shall apply only to such Bank in its capacity as a C$ Bank, and (x) any such
replacement shall not be deemed to be a waiver of any rights which the
Facility Borrowers, the Foreign Subsidiary Borrowers, any Agent or any other
Bank shall have against the replaced Bank.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement
and to make the Facility Loans herein provided for, CFC and, to the extent
applicable, CCCL, hereby represents and warrants to each Bank that:
5.1 Financial Condition. The consolidated balance sheet of
CFC and its Subsidiaries as at December 31, 1994, and the related consolidated
statements of net earnings and cash flows for the fiscal year ended on such
date, certified by Deloitte & Touche, copies of which have been delivered to
each Bank, present fairly the consolidated financial position of CFC and its
Subsidiaries as at such date, and the consolidated results of their operations
and cash flows for the fiscal year then ended. The unaudited consolidated
balance sheet of CFC and its Subsidiaries as at March 31, 1995, and the
related consolidated statements of net earnings and cash flows for the
three-month period ended on such date, certified by a Responsible Officer,
copies of which have been delivered to each Bank, present fairly the
consolidated financial condition of CFC and its Subsidiaries as at such date,
and the consolidated results of their operations for the three-month period
then ended (subject to normal year-end audit adjustments). Such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP. As at March 31, 1995, neither CFC nor any of
its Subsidiaries had any asset, liability, contingent obligation, liability
for taxes, long-term lease or unusual forward or long-term commitment material
to the financial condition of CFC and its Subsidiaries taken as a whole, which
was not reflected in the foregoing statements or in the notes thereto.
5.2 No Change. Between December 31, 1994 and the Effective
Date there has been no material adverse change in the business, operations or
financial condition of CFC and its Subsidiaries taken as a whole.
5.3 Corporate Existence. Each Facility Borrower (a) is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization, and (b) is duly qualified as a
foreign corporation to do business and is in good standing in each of the
jurisdictions in which the character of the properties owned or held under
lease by it or the nature of business transacted by it makes such
qualification necessary, except in the case of this clause (b) to the extent
that the failure to be so qualified or in good standing would not have a
material adverse effect on the business, operations or financial condition of
CFC and its Subsidiaries taken as a whole.
5.4 Corporate Authorization; No Violation. The execution,
delivery and performance by each Facility Borrower of this Agreement are
within the corporate powers of such Facility Borrower, have been duly
authorized by all necessary corporate action, and do not contravene any
Requirement of Law or Contractual Obligation of CFC or any of its
Subsidiaries, except to the extent that such contravention would not have a
material adverse effect on the business, operations or financial condition of
CFC and its Subsidiaries taken as a whole or on the ability of such Facility
Borrower to fulfill its obligations under this Agreement or on the rights and
remedies of the Agents and the Banks hereunder.
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38
5.5 Government Authorization. No authorization or approval
or other action by, and no notice to or filing with, any Governmental
Authority is required to be obtained or made by CFC or any of its Subsidiaries
for the due execution, delivery and performance by each Facility Borrower of
this Agreement.
5.6 Federal Regulations. Neither CFC nor any of its
Subsidiaries is principally engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U, T, G or X issued by the Federal Reserve Board), and no proceeds
of any borrowing hereunder will be used to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying any
margin stock.
5.7 Enforceable Obligations. This Agreement has been duly
executed and delivered on behalf of each Facility Borrower, and this Agreement
constitutes a legal, valid and binding obligation of each Facility Borrower
enforceable against such Facility Borrower in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by principles of equity, whether considered in
a proceeding in equity or at law.
5.8 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of either Facility Borrower, threatened by or against CFC
or any of its Subsidiaries or against any of its or their respective
properties or revenues, in which there is a reasonable likelihood of an
adverse determination (a) with respect to this Agreement or any of the
transactions contemplated hereby, if such adverse determination would have a
material adverse effect on the ability of either Facility Borrower to fulfill
its obligations under this Agreement or on the rights and remedies of the
Administrative Agent and the Banks hereunder or (b) which would, if adversely
determined, have a material adverse effect on the business, operations,
property or financial condition of CFC and its Subsidiaries taken as a whole.
5.9 Taxes. Each of CFC and its Subsidiaries has filed or
caused to be filed all material tax returns which to the knowledge of either
Facility Borrower are required to be filed, and has paid all material taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed
on it or any of its property by any Governmental Authority (other than those
the amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP, if any, have been provided on the books of CFC or its Subsidiaries, as
the case may be).
5.10 ERISA. No Prohibited Transaction or Accumulated Funding
Deficiency (other than those that have been waived by the Internal Revenue
Service) has occurred since July 1, 1974 with respect to any Plan and no
Reportable Event has occurred since July 1, 1974 with respect to any Plan
which could in either case subject CFC or any of its Subsidiaries to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of CFC and its
Subsidiaries taken as a whole. The projected benefit obligations with respect
to all benefits, both vested and nonvested, under all Single Employer Plans
(based on the most recently available actuarial information and computed in
accordance with Statement of Accounting Standards No. 87) maintained by CFC or
a Commonly Controlled Entity did not exceed, at December 31, 1994, the fair
value of the assets of such Plans.
5.11 Investment Company Act; Other Regulations. No Facility
Borrower is an "investment company", or a company "controlled" by an
"investment company", within the meaning of
<PAGE>
39
the Investment Company Act of 1940, as amended. No Facility Borrower is
subject to regulation under any statute or regulation of the United States or
Canada (or any governmental unit thereof) which limits its ability to incur
Indebtedness.
5.12 Existing Financial Covenants. Schedule II hereto sets
forth a list of all Material Indebtedness of CFC or any Significant Subsidiary
the documentation with respect to which includes a financial covenant which is
more onerous than, or materially different from, the financial covenant
contained in Section 8.1, together with a complete and correct transcription
of the text of each such financial covenant.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness. The effectiveness of this
Agreement is subject to the satisfaction of the following conditions
precedent:
(a) Execution of Agreement and Addenda. (i) This Agreement
shall have been executed and delivered by a duly authorized officer
of each Facility Borrower and each Agent and (ii) the Administrative
Agent shall have received an executed Addendum (or a copy thereof by
facsimile transmission) from each Person listed on Schedule I,
provided, that, notwithstanding the foregoing, in the event that an
Addendum has not been duly executed and delivered by each Person
listed on Schedule I on the date (which shall be no earlier than the
date hereof) on which this Agreement shall have been executed and
delivered by each of CFC and the Administrative Agent, this Agreement
shall, subject to satisfaction of the other conditions precedent set
forth in this Section 6.1, nevertheless become effective on such date
with respect to those Persons which have executed and delivered an
Addendum on or before such date if on such date CFC and the
Administrative Agent shall have designated one or more Commercial
Banks (the "Designated Banks") to assume, in the aggregate, all of
the Commitments which would have been held by the Persons listed on
Schedule I (the "Non-Executing Persons") which have not so executed
an Addendum (subject to each such Designated Bank's prior written
consent in its sole discretion and its execution of an Addendum).
Schedule I shall automatically be deemed to be amended to reflect the
respective Commitments of the Designated Banks and the omission of
the Non-Executing Persons as Banks hereunder.
(b) Closing Certificate. The Administrative Agent shall have
received a certificate of each Facility Borrower, dated the Effective
Date, substantially in the form of Exhibit B, with appropriate
insertions, satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of such Facility Borrower, and
attaching the documents referred to in Section 6.1(c) and (d).
(c) Corporate Proceedings of the Facility Borrowers. The
Administrative Agent shall have received a copy of the resolutions,
in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of each Facility Borrower (or a duly
authorized committee thereof) authorizing (i) the execution, delivery
and performance of this Agreement and (ii) the borrowings by such
Facility Borrower contemplated hereunder.
(d) Corporate Documents. The Administrative Agent shall have
received true and complete copies of the certificate of incorporation
or amalgamation and by-laws of each Facility Borrower.
<PAGE>
40
(e) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions, with a copy for each
Bank:
(i) the executed legal opinion of Simpson Thacher &
Bartlett, counsel to the Administrative Agent, substantially
in the form of Exhibit C-1;
(ii) the executed legal opinion of Allan L.
Ronquillo, Esq., General Counsel of CFC, substantially in
the form of Exhibit C-2; and
(iii) the executed legal opinion of Gowling,
Strathy & Henderson, Canadian Counsel to CCCL, substantially
in the form of Exhibit C-3.
(f) Existing Agreements. The Administrative Agent shall have
received satisfactory evidence that each of the Existing Agreements
shall have been terminated pursuant to an irrevocable notice of
termination and that any amounts owing thereunder (including, without
limitation, accrued unpaid commitment fees thereunder through the
Effective Date) by the relevant Facility Borrower shall have been (or
shall upon the occurrence of the Effective Date be) paid in full.
Without affecting any terms of any Existing Agreement which expressly
survive the termination of such Existing Agreement, each Bank party
to any Existing Agreement hereby waives any requirement of advance
notice of such termination contained in such Existing Agreement and
hereby agrees that such Existing Agreement and the commitments
thereunder (subject to receipt of any other required consents of any
other Person) shall terminate simultaneously with the satisfaction of
the conditions to effectiveness set forth in this Section 6.1.
The Administrative Agent shall notify the Banks of the Effective Date promptly
after the occurrence thereof, which notice shall be accompanied, if
applicable, with a copy of Schedule I revised to give effect to any deemed
amendments thereto made pursuant to Section 6.1(a).
6.2 Conditions to Each Facility Loan. The obligation of each
Bank to make any Facility Loan on or after the Effective Date, other than
pursuant to Section 2.3(b) or 3.4(b), as applicable, to be made by it
hereunder is subject to the satisfaction (or waiver by the Required U.S. Banks
(in the case of U.S. Loans) or the Required C$ Banks (in the case of C$
Loans)) of the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties made by CFC and, in the case of Canadian Loans, CCCL,
shall be correct in all material respects on and as of the Borrowing
Date for such Facility Loan as if made on and as of such date, except
for any such representations or warranties which relate solely to an
earlier date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such Borrowing Date
or after giving effect to the Facility Loans to be made on such
Borrowing Date.
Each borrowing by either Facility Borrower hereunder, other than pursuant to
Section 2.3(b) or 3.4(b), as applicable, shall constitute a representation and
warranty by such Facility Borrower as of the date of each such borrowing that
the conditions in this Section 6.2 have been satisfied.
<PAGE>
41
SECTION 7. AFFIRMATIVE COVENANTS
Each of CFC and, to the extent applicable, CCCL hereby
covenants and agrees that so long as the Commitments remain in effect, any
Facility Loan remains outstanding and unpaid or any other amount is owing to
any Bank or either Agent hereunder:
7.1 Financial Statements, etc. (a) Each Facility Borrower
will furnish (a) in the case of CFC, to the Administrative Agent and each Bank
or (b) in the case of CCCL, to the Canadian Administrative Agent and each C$
Bank:
(i) as soon as available and in any event within 60
days after the end of the first, second and third quarterly
accounting periods in each fiscal year of such Facility
Borrower, copies of financial statements of such Facility
Borrower and its Subsidiaries consisting of, at a minimum,
balance sheets of such Facility Borrower and its
Subsidiaries on a consolidated basis as of the end of such
quarterly accounting period, and related statements of net
earnings and cash flows for the portion of such fiscal year
ended with the last day of such quarterly accounting period,
all in reasonable detail and prepared and certified (subject
to year-end audit adjustments) by a Responsible Officer
(which certification may be included in the certificate
referred to in Section 7.1(a)(iii)) and stating in
comparative form the respective figures for the
corresponding date and period in the previous fiscal year;
(ii) as soon as available and in any event within
90 days after the end of each fiscal year of such Facility
Borrower, copies of financial statements of such Facility
Borrower and its Subsidiaries consisting of, at a minimum,
balance sheets of such Facility Borrower and its
Subsidiaries on a consolidated basis as of the end of such
fiscal year, and related statements of net earnings and cash
flows for such fiscal year, all in reasonable detail and
certified by independent public accountants of nationally
recognized standing selected by such Facility Borrower and
stating in comparative form the respective figures as of the
end of and for the previous fiscal year;
(iii) concurrently with the financial statements
for each quarterly accounting period and for each fiscal
year of such Facility Borrower furnished pursuant to
paragraphs (a)(i) and (a)(ii) of this Section 7.1, a
certificate of a Responsible Officer stating that, based on
an examination which in the opinion of the signer is
sufficient to enable him to make an informed statement, such
Facility Borrower and its Subsidiaries have performed and
observed all of, and neither such Facility Borrower nor any
of its Subsidiaries is in default in the performance or
observance of any of, the terms, covenants, agreements and
conditions of this Agreement or, if such Facility Borrower
or any of its Subsidiaries shall be in default, specifying
all such defaults and the nature thereof, of which the
signer of such certificate may have knowledge; and
(iv) such other information relating to the affairs
of such Facility Borrower and its Subsidiaries as any Bank
through the Administrative Agent may from time to time
reasonably request.
(b) (i) Upon written request by any Bank through the
Administrative Agent, each Facility Borrower will furnish to such Bank copies
of all such reports of the type a publicly held
<PAGE>
42
corporation would generally make available to its stockholders as such
Facility Borrower shall make available to its parent company and (ii) upon
written request of the Administrative Agent, each Facility Borrower will
furnish to the Administrative Agent all regular and periodic reports which CFC
or any Subsidiary may be required to file with the Securities and Exchange
Commission, the Ontario Securities Commission or any similar or corresponding
government department, commission, board, bureau or agency, domestic or
foreign, or with any securities exchange.
7.2 Maintenance of Existence. Each Facility Borrower will
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except for
rights, privileges and franchises the loss of which would not in the aggregate
in the reasonable business judgment of such Facility Borrower have a material
adverse effect on the business, operations, property or financial or other
condition of such Facility Borrower and its Subsidiaries taken as a whole, and
except as otherwise permitted by Section 8.3.
7.3 Notices. Each Facility Borrower will promptly give
notice to the Administrative Agent (which shall notify the Banks) of (a) the
occurrence of any Default or Event of Default (accompanied by a certificate of
a Responsible Officer specifying the nature of such event, the period of
existence thereof, and the action that the relevant Facility Borrower proposes
to take with respect thereto) and (b) the execution and delivery of any
documentation with respect to any Material Indebtedness of CFC or any
Significant Subsidiary if such documentation includes a financial covenant
which is more onerous than, or materially different from, the financial
covenant contained in Section 8.1, accompanied by a complete and correct
transcription of the text of such financial covenant. The delivery of any such
notice shall be deemed to automatically amend Schedule II to reflect the
existence of such financial covenant and the text thereof.
SECTION 8. NEGATIVE COVENANTS
Each of CFC and, to the extent applicable, CCCL, hereby
covenants and agrees that so long as the Commitments remain in effect, any
Facility Loan remains outstanding and unpaid or any other amount is owing to
any Bank or either Agent hereunder:
8.1 Debt to Equity Ratio. CFC will not permit the ratio of
Debt on the last day of any fiscal quarter of CFC to Equity on such day to be
greater than 11.0 to 1.0.
8.2 Limitation on Transactions with Affiliates. CFC will
not, and will not permit any Subsidiary to, engage in any transaction with an
Affiliate (other than CFC and its Subsidiaries) on terms substantially less
favorable to CFC or such Subsidiary than would be obtainable at the time in
comparable transactions of CFC or such Subsidiary with Persons not Affiliates.
As used in this Section 8.2, after the occurrence of a Change of Control, the
term "Affiliate" shall be deemed to include any CFC Affiliate.
8.3 Limitation on Fundamental Change. (a) CFC will not (i)
merge or consolidate with any other Person (unless (x) CFC shall be the
continuing corporation and (y) immediately before and immediately after giving
effect to such merger or consolidation, no Default or Event of Default shall
have occurred and be continuing) or (ii) sell or convey all or substantially
all of its assets to any Person.
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43
(b) CCCL will not (i) amalgamate with any other Person
(unless (x) the amalgamated Person shall, if requested by the Administrative
Agent, execute and deliver a ratification of any outstanding C$ Loans and a
confirmation of its assumption of the Subsidiary Borrower Obligations owing by
CCCL and (y) immediately before and immediately after giving effect to such
amalgamation, no Default or Event of Default shall have occurred and be
continuing) or (ii) sell or convey all or substantially all of its assets to
any Person (other than CFC).
8.4 Limitation on Liens. (a) CFC will not, and will not
permit any Finance Subsidiary to, create, assume or incur, or suffer to be
created, assumed or incurred or to exist, any Lien in respect of any property
of any character of CFC or such Finance Subsidiary, whether heretofore or
hereafter acquired; excluding, however, from the operation of this covenant:
(i) any deposit of assets of CFC or any of its Finance
Subsidiaries with any surety company or clerk of any court, or in
escrow, as collateral in connection with, or in lieu of, any bond on
appeal by CFC or any of its Finance Subsidiaries, from any judgment
or decree, or in connection with other proceedings or actions at law
or in equity by or against CFC or any of its Finance Subsidiaries;
(ii) Liens created by any Finance Subsidiary in favor of
CFC or a wholly-owned Subsidiary securing indebtedness of such
Finance Subsidiary to CFC or a wholly-owned Subsidiary (which Liens
cannot be transferred except to CFC or to another wholly-owned
Subsidiary);
(iii) any deposits to secure public or statutory
obligations of CFC or any of its Finance Subsidiaries, other than any
such deposit made as a result of or in connection with the occurrence
of any of the events described in clause (i), (ii), (iii) or (iv) of
Section 9(g);
(iv) any purchase money Liens in respect of fixed assets
or other physical or real properties heretofore or hereafter acquired
by CFC or any of its Finance Subsidiaries, or any Liens existing in
respect of such property at the time of acquisition thereof;
provided, however, that no such Lien shall extend to or cover any
other property of CFC or such Finance Subsidiary, as the case may be;
(v) any Liens which are (A) in respect of fixed assets
or other physical properties of a corporation which is not a Finance
Subsidiary as of the date hereof, and (B) in existence at the time
such corporation becomes a Finance Subsidiary;
(vi) the extension, renewal or replacement of any Lien
permitted by paragraphs (i) through (v) above in respect of the same
property theretofore subject thereto or the extension, renewal or
replacement (without increase of principal amount) of the
indebtedness secured thereby;
(vii) Liens for taxes not yet due or which are being
contested in good faith and by appropriate proceedings if adequate
reserves with respect thereto are maintained on the books of CFC or
such Finance Subsidiary, as the case may be, in accordance with GAAP;
(viii) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business (A) which are not overdue for a period of
more than 60 days or (B) which are being contested in good faith and
by appropriate
<PAGE>
44
proceedings if adequate reserves with respect thereto are maintained
on the books of CFC or such Finance Subsidiary, as the case may be,
in accordance with GAAP;
(ix) easements, rights-of-way, zoning and similar
restrictions and other similar encumbrances or title defects incurred
in the ordinary course of business which, in the aggregate, are not
substantial in amount, and which do not in any case materially
detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of CFC or its Finance
Subsidiaries;
(x) any attachment or judgment lien, unless the judgment
it secures shall not, within 30 days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or shall
not have been discharged within 30 days after the expiration of any
such stay;
(xi) Liens granted on assets in connection with leveraged
leases and project financings entered into in the ordinary course of
the Finance Business;
(xii) Liens granted in connection with the cash
collateralization of Bankers' Acceptances pursuant hereto or in
connection with the cash collateralization of bankers' acceptances
pursuant to the Short Term Revolving Credit Agreement;
(xiii) Liens on receivables payable in foreign currencies
(other than C$) to secure borrowings in foreign countries (other than
Canada); and
(xiv) Liens to secure Indebtedness and other obligations
of CFC or any of its Finance Subsidiaries not otherwise permitted by
this Section 8.4, but only to the extent that the aggregate amount of
Indebtedness and other obligations secured thereby does not at any
time exceed $100,000,000 (or the equivalent thereof in any other
currency).
(b) CFC will not permit any Domestic Subsidiary that is not
a Finance Subsidiary to create, assume or incur, or suffer to be created,
assumed or incurred or to exist, any Lien in respect of any property of any
character of such Domestic Subsidiary, whether heretofore or hereafter
acquired, excluding, however, from the operation of this covenant:
(i) Liens on property of such Domestic Subsidiary that
would be permitted under Section 8.4(a) if such Domestic Subsidiary
were a Finance Subsidiary;
(ii) Liens on property of such Domestic Subsidiary that
are incurred in the ordinary course of the Finance Business or the
Real Estate Business of such Domestic Subsidiary; and
(iii) Liens on any property of such Domestic Subsidiary if
such Domestic Subsidiary is a "single purpose" entity formed for the
purpose of holding title to such property and engages in no
activities other than those related to holding title to such
property.
8.5 Additional Covenants. At any time after the occurrence
of a Change of Control:
(a) Limitation on Dividends, Investments, etc. CFC
shall not (i) declare or pay any dividend (other than dividends
payable solely in common stock of CFC) on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund
for, the
<PAGE>
45
purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of CFC, whether now or
hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property
or in obligations of CFC or any Subsidiary or (ii) make, or permit
any Subsidiary to make, any investment, loan, advance, capital
contribution or extension of credit (including by way of guaranty in
favor of third party creditors), whether in cash or property or
otherwise, in or to or for the benefit of any CFC Affiliate, except
that (x) so long as no Event of Default has occurred and is
continuing (or would occur after giving effect thereto), CFC may
declare and pay any scheduled dividend on, and make redemptions of,
preferred stock issued by CFC to any Person (other than a CFC
Affiliate) to the extent permitted by the terms thereof and (y) CFC
and its Subsidiaries may make investments, loans, advances and
extensions of credit in or to or for the benefit of any CFC Affiliate
in the ordinary course of its Finance Business consistent with
historical practices (in each case determined as of the date of such
Change of Control) and in accordance with Section 8.2.
(b) Minimum Equity. CFC shall not permit Equity
(determined without giving effect to any redemption of preferred
stock of CFC made pursuant to Section 8.5(a) after the date of such
Change of Control) to be less than an amount equal to Equity as of
the day immediately preceding the occurrence of such Change of
Control minus $250,000,000.
(c) Limitation on Amendments to Intercompany
Agreements; CFC Affiliate Transactions. CFC shall not, and shall not
permit any Subsidiary to, (i) amend or modify, or agree to amend or
modify, any of the provisions of any Intercompany Agreement in a
manner materially adverse to the interests of either (x) CFC and its
Subsidiaries taken as a whole or (y) the Banks, or (ii) enter into,
or agree to enter into, any Intercompany Agreement which is
materially adverse to the interests of either (x) CFC and its
Subsidiaries taken as a whole or (y) the Banks. As used in this
Section 8.5(c), "Intercompany Agreement" means any agreement between
CFC or any Subsidiary and any CFC Affiliate, any instrument issued by
CFC or any Subsidiary to any CFC Affiliate and any instrument issued
by any CFC Affiliate to CFC or any Subsidiary.
(d) Limitation on Lines of Business. CFC shall not,
and shall not permit any Subsidiary to, engage in any business other
than the Finance Business, the Finance-Related Insurance Business and
the other businesses in which CFC and its Subsidiaries are engaged as
of the date of such Change of Control, and other than businesses in
which CFC or any of its Subsidiaries may be involved in connection
with or related to any workout, liquidation, foreclosure or other
realization on or disposition of assets in which it has a security
interest, or any other exercise of rights or remedies pursuant to a
workout in connection with any financing (whether equity or debt)
provided by CFC or any of its Subsidiaries to any Person.
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) CFC or any Subsidiary Borrower shall fail to pay any
principal of any Loan when due in accordance with the terms hereof or
of the relevant Foreign Currency Subfacility, as the case may be; or
to pay any interest on any Loan or any fee or other amount owing
hereunder or under any Foreign Currency Subfacility within five
Business Days after any such interest,
<PAGE>
46
fee or other amount becomes due in accordance with the terms hereof
or of the relevant Foreign Currency Subfacility, as the case may be;
or
(b) any representation or warranty made by either Facility
Borrower herein, or deemed made by either Facility Borrower pursuant
to Section 5 or 6, or which is contained in any certificate, document
or financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect in
any material respect on or as of the date made, or deemed made; or
(c) either Facility Borrower shall default in the observance
or performance of any agreement contained in Section 8.1, 8.3 or 8.5;
or
(d) either Facility Borrower shall default in the observance
or performance of any other agreement, covenant or term contained in
this Agreement (including any failure to make any payment required
hereunder other than as described in paragraph (a) above), and such
default shall continue unremedied for a period of 30 days after
receipt by such Facility Borrower of notice of such default from the
Administrative Agent; or
(e) CFC or any Significant Subsidiary shall default in any
payment of $25,000,000 (or the equivalent thereof in any other
currency) or more of principal of or interest on any Indebtedness or
in the payment of $25,000,000 (or the equivalent thereof in any other
currency) or more on account of any guarantee in respect of
Indebtedness, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness or guarantee
was created; or
(f) (i) CFC or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing
or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its
assets, or CFC or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there
shall be commenced against CFC or any of its Significant Subsidiaries
any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against CFC or any of its Significant
Subsidiaries any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) CFC or any of its Significant
Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii) or (iii) above; or (v) CFC or any of its
Significant Subsidiaries shall admit in writing its inability to pay
its debts generally as they become due; or
(g) (i) any Person shall engage in any Prohibited
Transaction involving any Plan, (ii) any Accumulated Funding
Deficiency, whether or not waived, shall exist with respect to any
Plan, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to
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47
have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which
Reportable Event or institution of proceedings is, in the reasonable
opinion of the Required Banks, likely to result in the termination of
such Plan for purposes of Title IV of ERISA, and, in the case of a
Reportable Event, the continuance of such Reportable Event unremedied
for ten days after notice of such Reportable Event pursuant to
Section 4043(a), (c) or (d) of ERISA is given or the continuance of
such proceedings for ten days after commencement thereof, as the case
may be, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, or (v) any other event or condition shall occur or
exist with respect to a Single Employer Plan; and in each case in
clauses (i) through (v) above, the Administrative Agent shall have
notified CFC that, in the opinion of the Required Banks, such event
or condition, together with all other such events or conditions, if
any, could reasonably be expected to subject CFC or any of its
Subsidiaries to any tax, penalty or other liabilities in the
aggregate material in relation to the business, operations, property
or financial or other condition of CFC and its Subsidiaries taken as
a whole; or
(h) one or more final judgments or decrees shall be entered
against CFC or any of its Significant Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of
$100,000,000 (or the equivalent thereof in any other currency) or
more shall have been unpaid for a period of 60 days and shall not
have been stayed; or
(i) Chrysler shall at any time fail to own at least 51% of
the issued and outstanding shares of the common stock of CFC; or
(j) CFC or any of its Significant Subsidiaries shall default
in the observance or performance of any financial covenant contained
in any instrument or agreement evidencing, securing or relating to
any of its Material Indebtedness, the effect of which default is to
cause, or to permit the holder or holders of such Material
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Material Indebtedness to become due prior to
its stated maturity;
then, and in any such event, (a) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to CFC,
automatically the Commitments shall immediately terminate and the Loans
(including the face amount of all Bankers' Acceptances accepted by any C$
Bank), with accrued interest thereon, and all other amounts owing under this
Agreement and the Foreign Currency Subfacilities shall immediately become due
and payable, and (b) if such event is any other Event of Default, either or
both of the following actions may be taken: (i) with the consent of the
Required Banks, the Administrative Agent may, or upon the request of the
Required Banks, the Administrative Agent shall, by notice to CFC, declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Banks, the
Administrative Agent may, or upon the request of the Required Banks, the
Administrative Agent shall, by notice of default to CFC, declare the Loans
(including the face amount of all Bankers' Acceptances accepted by any C$
Bank), with accrued interest thereon, and all other amounts owing under this
Agreement and the Foreign Currency Subfacilities to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section 9, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
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48
SECTION 10. THE AGENTS
10.1 Appointment. Each Bank hereby irrevocably designates
and appoints the Administrative Agent as the administrative agent of such Bank
under this Agreement, and each Bank hereby irrevocably authorizes the
Administrative Agent as administrative agent for such Bank to take such action
on its behalf under the provisions of this Agreement and to exercise such
powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement, together with such other
powers as are reasonably incidental thereto. Each C$ Bank hereby irrevocably
designates and appoints the Canadian Administrative Agent as the Canadian
administrative agent of such Bank under this Agreement, and each C$ Bank
hereby irrevocably authorizes the Canadian Administrative Agent as Canadian
administrative agent for such Bank to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Canadian Administrative Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, neither Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with
any Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any Foreign
Currency Subfacility or otherwise exist against either Agent.
10.2 Delegation of Duties. Each Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. Without limiting the foregoing, the Administrative Agent may
appoint CASC as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to CFC and distribution of funds
to the Banks and to perform such other related functions of the Administrative
Agent hereunder as are reasonably incidental to such functions.
10.3 Exculpatory Provisions. Neither Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates (including, without limitation, CASC) shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct), or (b) responsible in any manner to any of
the Banks for any recitals, statements, representations or warranties made by
either Facility Borrower, any Foreign Subsidiary Borrower or any Subsidiary or
any officer thereof contained in this Agreement or any Foreign Currency
Subfacility or in any certificate, report, statement or other document
referred to or provided for in, or received by either Agent under or in
connection with, this Agreement or any Foreign Currency Subfacility or for any
failure of either Facility Borrower, any Foreign Subsidiary Borrower or any
Subsidiary to perform its obligations hereunder or thereunder. Neither Agent
shall be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any Foreign Currency Subfacility, or to inspect the
properties, books or records of either Facility Borrower, any Foreign
Subsidiary Borrower or any Subsidiary.
10.4 Reliance by Agents and CASC. Each Agent and CASC shall
be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, facsimile transmission, telex or teletype message,
statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to CFC), independent accountants and other experts
selected by the relevant Agent. Each Agent and CASC may deem and treat the
Bank specified in the relevant Register with respect to any amount owing
hereunder as the owner thereof for all purposes unless a
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49
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent in accordance with Section 13.7. Each
Agent shall be fully justified in failing or refusing to take any action under
this Agreement unless it shall first receive such advice or concurrence of the
Required Banks (or, if so specified in this Agreement, all of the Banks) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Each Agent shall, in
all cases, be fully protected in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required Banks (or, if so
specified in this Agreement, all of the Banks), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Banks and all future holders of the obligations owing by the Facility
Borrowers hereunder.
10.5 Notice of Default. Neither Agent shall be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Bank or either Facility
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that either Agent receives such a notice, such Agent shall give notice thereof
to the Banks, and, if such notice is received from a Bank, such Agent shall
give notice thereof to each Facility Borrower and each other Bank. Subject to
the proviso contained in Section 13.1, the Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks (or, if so specified in this
Agreement, all of the Banks); provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Banks.
10.6 Non-Reliance on Agents, Other Banks and CASC. Each Bank
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates
(including, without limitation, CASC) has made any representations or
warranties to it and that no act by either Agent hereafter taken, including
any review of the affairs of either Facility Borrower, shall be deemed to
constitute any representation or warranty by either Agent to any Bank. Each
Bank represents to each Agent and CASC that it has, independently and without
reliance upon either Agent, any other Bank or CASC, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Facility Borrowers and any Foreign
Subsidiary Borrower and made its own decision to make its Loans under, and
enter into, this Agreement and any Foreign Currency Subfacility. Each Bank
also represents that it will, independently and without reliance upon either
Agent, any other Bank or CASC, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement or any Foreign Currency Subfacility, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Facility
Borrowers and any Foreign Subsidiary Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Banks by the
relevant Agent hereunder, neither Agent shall have any duty or responsibility
to provide any Bank with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of either Facility Borrower or any Foreign Subsidiary
Borrower which may come into the possession of the Administrative Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7 Indemnification. The Banks (or, in the case of the
indemnity in favor of the Canadian Administrative Agent, the C$ Banks) agree
to indemnify each Agent and CASC (to the
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50
extent not reimbursed by either Facility Borrower and without limiting the
obligation of each Facility Borrower to do so), ratably according to the
respective amounts of their respective Commitment Percentages (or, in the case
of the indemnity in favor of the Canadian Administrative Agent, the C$ Banks'
respective C$ Commitment Percentages) in effect on the date on which
indemnification is sought under this Section 10.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated,
ratably in accordance with such Commitment Percentages (or C$ Commitment
Percentages) immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Loans) be imposed on, incurred by or asserted against such Agent or CASC
in any way relating to or arising out of this Agreement or any Foreign
Currency Subfacility or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by such Agent or CASC under or in connection with any
of the foregoing, provided that no Bank shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent's
or CASC's, as the case may be, gross negligence or willful misconduct. The
agreements in this Section 10.7 shall survive the payment of the Loans and all
other amounts payable hereunder or under any Foreign Currency Subfacility.
10.8 Agents in their Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with each Facility Borrower and any Foreign Subsidiary
Borrower as though such Agent was not an Agent hereunder. With respect to its
Loans made or renewed by it, each Agent shall have the same rights and powers
under this Agreement as any Bank and may exercise the same as though it were
not an Agent, and the terms "Bank" and "Banks" shall include such Agent in its
individual capacity.
10.9 Successor Agents. Each Agent may resign as Agent upon
10 days' notice to the Banks and the Facility Borrowers, and may be removed at
any time with or without cause by the Required Banks. If an Agent shall resign
or be removed as Agent under this Agreement, then either (a) the Required
Banks shall appoint from among the Banks a successor administrative agent or
Canadian administrative agent, as applicable, which successor agent shall be
approved by CFC, or (b) if a successor agent shall not have been so appointed
and approved within the 10-day period following such Agent's notice to the
Banks or its removal as Agent, such Agent shall then, with the consent of CFC,
appoint a successor agent who shall serve as Administrative Agent or Canadian
Administrative Agent, as applicable, until such time, if any, as the Required
Banks appoint, and CFC approves, a successor agent as provided in (a) above.
Upon its appointment pursuant to either clause (a) or (b) above, such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent or the Canadian Administrative Agent, as applicable, and
the terms "Administrative Agent", "Canadian Administrative Agent" and "Agent",
as applicable, shall mean such successor agent effective upon its appointment,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or
any of the parties to this Agreement or any holders of the obligations owing
by the Facility Borrowers hereunder. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
10.10 The Managing Agents. No Managing Agent in its capacity
as such shall have any rights, duties or responsibilities hereunder, or any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against any Managing Agent in its capacity as
Managing Agent.
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51
SECTION 11. FOREIGN CURRENCY SUBFACILITIES
11.1 Terms of Foreign Currency Subfacilities. (a) Subject to
the provisions of this Section 11, each Bank hereby agrees that CFC may in its
discretion from time to time designate any credit facility to which any one or
more Foreign Subsidiary Borrowers and any one or more Banks is a party as a
"Foreign Currency Subfacility", with the consent of each such Bank in its sole
discretion, and subject to confirmation by the Administrative Agent that such
facility complies with the requirements of this Section 11, by delivering a
Foreign Currency Subfacility Addendum to the Administrative Agent, executed by
CFC and each such Foreign Subsidiary Borrower and executed or acknowledged in
writing by each such Bank, provided, that on the effective date of such
designation (i) a Foreign Exchange Rate with respect to each Foreign Currency
covered by such Foreign Currency Subfacility shall be determinable by
reference to a selling rate published in the "Wall Street Journal" (or, in the
event that such rate is not so published, such other publicly available source
for determining exchange rates as shall be acceptable to the Administrative
Agent and CFC), (ii) no Default or Event of Default shall have occurred and be
continuing and (iii) CFC shall have agreed in writing to pay to the
Administrative Agent an administration fee in respect of such Foreign Currency
Subfacility in an amount mutually acceptable to CFC and the Administrative
Agent. Except as otherwise provided in this Section 11, the terms and
conditions of each Foreign Currency Subfacility shall be determined by mutual
agreement of the relevant Foreign Subsidiary Borrower(s) and Bank(s). The
documentation governing each Foreign Currency Subfacility shall contain an
express acknowledgement that such Foreign Currency Subfacility shall be
subject to the provisions of this Section 11. Each Bank party to a Foreign
Currency Subfacility must be a US$ Bank or a subsidiary, affiliate, branch or
agency of a US$ Bank, and each party hereto and, by agreeing to any Foreign
Currency Subfacility designation as contemplated hereby, any such subsidiary,
affiliate, branch or agency, acknowledges and agrees that each reference in
this Agreement to any Bank shall, to the extent applicable, be deemed to be a
reference to such subsidiary, affiliate, branch or agency. In the event of any
inconsistency between the terms of this Agreement and the terms of any Foreign
Currency Subfacility, the terms of this Agreement shall prevail. It is
understood that the provisions of Sections 4.10, 4.11, 4.12 and 4.13 do not
apply to any Foreign Currency Subfacility or any Loans made thereunder.
(b) The documentation governing each Foreign Currency
Subfacility shall set forth the maximum amount (expressed in Dollars)
available to be borrowed from each Bank thereunder (each, a "Foreign Currency
Subfacility Maximum Borrowing Amount"). In no event shall (i) the aggregate of
all Foreign Currency Subfacility Maximum Borrowing Amounts in respect of all
Banks at any time exceed 10% of the aggregate Commitments then in effect, (ii)
the aggregate of all Foreign Currency Subfacility Maximum Borrowing Amounts in
respect of any Bank at any time exceed the lesser of $50,000,000 and 50% of
such Bank's U.S. Commitment or (iii) the Aggregate U.S./Foreign Extensions of
Credit of any Bank at any time exceed such Bank's U.S. Commitment. The making
of Foreign Currency Loans by a Bank under a Foreign Currency Subfacility shall
under no circumstances reduce the amount available to be borrowed from such
Bank under any other Foreign Currency Subfacility to which such Bank is a
party.
(c) Except as otherwise required by applicable law, in no
event shall the Banks party to a Foreign Currency Subfacility have the right
to accelerate the Foreign Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Loans prior to the stated
termination date in respect thereof, except, in each case, in connection with
an acceleration of the Loans or a termination of the Commitments pursuant to
Section 9 of this Agreement, provided, that nothing in this paragraph (c)
shall be deemed to require any Bank to make a Foreign Currency Loan if the
applicable conditions precedent to the making of such Foreign Currency Loan
set forth in the relevant Foreign Currency Subfacility have not been
satisfied. No Foreign Currency Loan may be
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52
made under a Foreign Currency Subfacility if a Default or Event of Default
shall have occurred and be continuing or would result therefrom.
(d) The relevant Banks, or, if so specified in the relevant
Foreign Currency Subfacility, an agent acting on their behalf, shall furnish
to the Administrative Agent, immediately upon its request, a statement setting
forth the outstanding Foreign Currency Loans made under such Foreign Currency
Subfacility. The Administrative Agent shall be entitled to rely on any such
statement without further investigation.
(e) If any amendment, supplement or other modification to a
Foreign Currency Subfacility shall (i) add a Bank as a party thereto or (ii)
change the Foreign Currency Subfacility Maximum Borrowing Amount of any Bank
party thereto, CFC shall promptly furnish an appropriately revised Foreign
Currency Subfacility Addendum, executed by CFC, the relevant Foreign
Subsidiary Borrower and the affected Banks (or any agent acting on their
behalf), to the Administrative Agent.
(f) CFC may terminate its designation of a facility as a
Foreign Currency Subfacility, with the consent of each Bank party thereto in
its sole discretion, by written notice to the Administrative Agent, which
notice shall be executed by CFC, the relevant Foreign Subsidiary Borrower and
each Bank party to such Foreign Currency Subfacility (or any agent acting on
their behalf). Once notice of such termination is received by the
Administrative Agent, such Foreign Currency Subfacility and the loans and
other obligations outstanding thereunder shall immediately cease to be subject
to the terms of this Agreement (including the guarantee of CFC contained in
Section 12).
(g) Nothing in this Section 11 shall be deemed to limit the
ability of CFC or any of the Subsidiaries to enter into credit facilities
which do not constitute Foreign Currency Subfacilities.
11.2 Currency Fluctuations, etc. (a) No later than 2:00
P.M., New York City time, on each Foreign Calculation Date, the Administrative
Agent shall (i) determine the Foreign Exchange Rate as of such Foreign
Calculation Date with respect to each Foreign Currency covered by a Foreign
Currency Subfacility and (ii) give notice thereof to the relevant Banks and
CFC. The Foreign Exchange Rates so determined shall become effective on the
first Business Day immediately following the relevant Foreign Calculation Date
(a "Foreign Reset Date") and shall remain effective until the next succeeding
Foreign Reset Date. If on any Foreign Calculation Date a Foreign Exchange Rate
cannot be determined with respect to any Foreign Currency, such Foreign
Exchange Rate shall remain at the applicable rate effective as of the most
recent Foreign Reset Date with respect to which such Foreign Exchange Rate was
available until such Foreign Exchange Rate can once again be determined.
(b) No later than 2:00 P.M., New York City time, on each
Foreign Reset Date and each Borrowing Date, the Administrative Agent shall (i)
determine the US$ Equivalent of the Foreign Currency Loans then outstanding
under each Foreign Currency Subfacility (after giving effect to any Foreign
Currency Loans to be made or repaid on such date) and (ii) notify the relevant
Banks and CFC of the results of such determination.
(c) If, on any Foreign Reset Date or any Borrowing Date
(after giving effect to (i) any Loans to be made or repaid on such date and
(ii) any amendment, supplement or other modification to any Foreign Currency
Subfacility effective on such date of which the Administrative Agent has
received notice), the Aggregate U.S./Foreign Extensions of Credit (US$
Equivalent) of any Bank exceed the U.S. Commitment of such Bank, then, within
ten Business Days after notice thereof to CFC from the Administrative Agent,
CFC shall cause the relevant Foreign Subsidiary Borrower to reduce
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53
the Aggregate Foreign Extensions of Credit of such Bank in an amount such
that, after giving effect thereto, the Aggregate U.S./Foreign Extensions of
Credit (US$ Equivalent) of such Bank shall be equal to or less than the U.S.
Commitment of such Bank.
(d) If, on any Foreign Reset Date or any Borrowing Date
(after giving effect to (i) any Foreign Currency Loans to be made or repaid on
such date and (ii) any amendment, supplement or other modification to any
Foreign Currency Subfacility effective on such date of which the
Administrative Agent has received notice), the US$ Equivalent of the Foreign
Currency Loans made by any Bank outstanding under any Foreign Currency
Subfacility to which such Bank is a party exceeds the Foreign Currency
Subfacility Maximum Borrowing Amount of such Bank with respect thereto, then
CFC shall cause the relevant Foreign Subsidiary Borrower, within ten Business
Days after notice thereof to CFC from the Administrative Agent, to (i)
increase the Foreign Currency Subfacility Maximum Borrowing Amount of such
Bank with respect to such Foreign Currency Subfacility (subject to the
approval of such Bank) in accordance with Section 11.1(e) and/or (ii) prepay
such Foreign Currency Loans in accordance with the terms of such Foreign
Currency Subfacility in an aggregate amount such that, after giving effect
thereto, the US$ Equivalent of such Foreign Currency Loans shall be equal to
or less than such Bank's Foreign Currency Subfacility Maximum Borrowing Amount
with respect to such Foreign Currency Subfacility.
(e) The Administrative Agent shall promptly furnish each
affected Bank with a copy of any notice described in Section 11.2(c) or
11.2(d) which has been delivered to CFC by the Administrative Agent.
SECTION 12. GUARANTEE
12.1 Guarantee. In order to induce the Agents and the Banks
to execute and deliver this Agreement, to become a party to any Foreign
Currency Subfacility and to make or maintain the Loans, and in consideration
thereof, CFC hereby unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, to the Administrative Agent, for the ratable
benefit of the Agents and the Banks, the prompt and complete payment and
performance by each Subsidiary Borrower when due (whether at stated maturity,
by acceleration or otherwise) of the Subsidiary Borrower Obligations. The
guarantee contained in this Section 12, subject to Section 12.5, shall remain
in full force and effect until the Subsidiary Borrower Obligations are paid in
full and the Commitments are terminated, notwithstanding that from time to
time prior thereto any Subsidiary Borrower may be free from any Subsidiary
Borrower Obligations.
CFC agrees that whenever, at any time, or from time to time,
it shall make any payment to either Agent or any Bank on account of its
liability under this Section 12, it will notify the Administrative Agent (and,
in the cases of payments to it, the Canadian Administrative Agent) and such
Bank in writing that such payment is made under the guarantee contained in
this Section 12 for such purpose. No payment or payments made by any
Subsidiary Borrower or any other Person or received or collected by either
Agent or any Bank from any Subsidiary Borrower or any other Person by virtue
of any action or proceeding or any setoff or appropriation or application, at
any time or from time to time, in reduction of or in payment of the Subsidiary
Borrower Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of CFC under this Section 12 which, notwithstanding any
such payment or payments, shall remain liable for the unpaid and outstanding
Subsidiary Borrower Obligations until, subject to Section 12.5, the Subsidiary
Borrower Obligations are paid in full and the Commitments are terminated.
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54
12.2 No Subrogation, Contribution, Reimbursement or
Indemnity. Notwithstanding anything to the contrary in this Section 12, CFC
hereby irrevocably waives (a) all rights which may have arisen in connection
with the guarantee contained in this Section 12 to be subrogated to any of the
rights (whether contractual, under the Bankruptcy Code, including Section 509
thereof, under common law or otherwise) of either Agent or any Bank against
any Subsidiary Borrower or against either Agent or any Bank for the payment of
the Subsidiary Borrower Obligations and (b) all contractual, common law,
statutory and other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against any Subsidiary Borrower or
any other Person which may have arisen in connection with the guarantee of the
Subsidiary Borrower Obligations contained in this Section 12, in each case
until all Subsidiary Borrower Obligations of such Subsidiary Borrower have
been paid in full. So long as the Subsidiary Borrower Obligations remain
outstanding, if any amount shall be paid by or on behalf of any Subsidiary
Borrower or any other Person to CFC on account of any of the rights waived in
this Section 12.2, such amount shall be held by CFC in trust, segregated from
other funds of CFC, and shall, forthwith upon receipt by CFC, be turned over
to the Administrative Agent in the exact form received by CFC (duly indorsed
by CFC to the Administrative Agent, if required), to be applied against the
Subsidiary Borrower Obligations, whether matured or unmatured, in such order
as the Administrative Agent may determine. The provisions of this Section 12.2
shall survive the term of the guarantee contained in this Section 12 and the
payment in full of the Subsidiary Borrower Obligations and the termination of
the Commitments.
12.3 Amendments, etc. with respect to the Subsidiary
Borrower Obligations. CFC shall remain obligated under this Section 12
notwithstanding that, without any reservation of rights against CFC, and
without notice to or further assent by CFC, any demand for payment of or
reduction in the principal amount of any of the Subsidiary Borrower
Obligations made by either Agent or any Bank may be rescinded by such Agent or
such Bank, and any of the Subsidiary Borrower Obligations continued, and the
Subsidiary Borrower Obligations, or the liability of any other party upon or
for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by either Agent or any Bank, and this
Agreement and any other documents executed and delivered in connection
herewith or in connection with any Foreign Currency Subfacility may be
amended, modified, supplemented or terminated, in whole or in part, as may be
deemed advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by either Agent or any Bank for the payment
of the Subsidiary Borrower Obligations may be sold, exchanged, waived,
surrendered or released. No Agent or Bank shall have any obligation to
protect, secure, perfect or insure any lien at any time held by it as security
for the Subsidiary Borrower Obligations or for the guarantee contained in this
Section 12 or any property subject thereto.
12.4 Guarantee Absolute and Unconditional. CFC waives any
and all notice of the creation, renewal, extension or accrual of any of the
Subsidiary Borrower Obligations and notice of or proof of reliance by either
Agent or any Bank upon the guarantee contained in this Section 12 or
acceptance of the guarantee contained in this Section 12; the Subsidiary
Borrower Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon the guarantee contained in this Section 12; and all dealings
between CFC or the Subsidiary Borrowers, on the one hand, and the Agents and
the Banks, on the other, shall likewise be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section
12. CFC waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon CFC or any Subsidiary Borrower with
respect to the Subsidiary Borrower Obligations. The guarantee contained in
this Section 12 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of
this Agreement, any Foreign Currency Subfacility, any of the Subsidiary
<PAGE>
55
Borrower Obligations or any collateral security therefor or guarantee or right
of offset with respect thereto at any time or from time to time held by either
Agent or any Bank, (b) the legality under applicable Requirements of Law of
repayment by the relevant Subsidiary Borrower of any Subsidiary Borrower
Obligations or the adoption of any Requirement of Law purporting to render any
Subsidiary Borrower Obligations null and void, (c) any defense, setoff or
counterclaim (other than a defense of payment or performance by the applicable
Subsidiary Borrower) which may at any time be available to or be asserted by
CFC or any Subsidiary Borrower against either Agent or any Bank, or (d) any
other circumstance whatsoever (with or without notice to or knowledge of CFC
or any Subsidiary Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of any Subsidiary Borrower for any
Subsidiary Borrower Obligations, or of CFC under the guarantee contained in
this Section 12, in bankruptcy or in any other instance. When either Agent or
any Bank is pursuing its rights and remedies under this Section 12 against
CFC, such Agent or Bank may, but shall be under no obligation to, pursue such
rights and remedies as it may have against any Subsidiary Borrower or any
other Person or against any collateral security or guarantee for the
Subsidiary Borrower Obligations or any right of offset with respect thereto,
and any failure by either Agent or any Bank to pursue such other rights or
remedies or to collect any payments from any Subsidiary Borrower or any such
other Person or to realize upon any such collateral security or guarantee or
to exercise any such right of offset, or any release of any Subsidiary
Borrower or any such other Person or of any such collateral security,
guarantee or right of offset, shall not relieve CFC of any liability under
this Section 12, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Agents and
the Banks against CFC.
12.5 Reinstatement. The guarantee contained in this Section
12 shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Subsidiary Borrower
Obligations is rescinded or must otherwise be restored or returned by either
Agent or any Bank upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Subsidiary Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, any Subsidiary Borrower or any substantial part of its property,
or otherwise, all as though such payments had not been made.
12.6 Payments. (a) CFC hereby agrees that any payments in
respect of the Subsidiary Borrower Obligations pursuant to this Section 12
will be paid without setoff or counterclaim in C$ (in the case of Subsidiary
Borrower Obligations arising under this Agreement) or, at the option of the
relevant Bank(s), in Dollars or in the relevant Foreign Currency (in the case
of Subsidiary Borrower Obligations arising under any Foreign Currency
Subfacility), to (unless otherwise specified by the Administrative Agent): (a)
the Canadian Administrative Agent at the office of the Canadian Administrative
Agent specified in Section 13.2 (in the case of Subsidiary Borrower
Obligations arising under this Agreement) or (b) the relevant Bank(s) (or an
agent acting on their behalf) at the office specified for payments under the
relevant Foreign Currency Subfacility or such other office as shall have been
specified by the relevant Bank(s) in each case to the extent permitted by
applicable law (in the case of Subsidiary Borrower Obligations arising under
any Foreign Currency Subfacility).
(b) In the event that any law, regulation, treaty or
directive (whether or not in effect on the date hereof), shall require any
Taxes to be withheld or deducted from any amount payable to any Bank under the
guarantee contained in this Section 12, upon notice by such Bank to CFC (with
a copy to the Administrative Agent) to the effect that as a result of such
law, rule, regulation, treaty or directive, Taxes are being withheld or
deducted from amounts payable to such Bank under the guarantee contained in
this Section 12, CFC will pay to such Bank (or, if applicable, the relevant
Agent or any other agent acting on such Bank's behalf) additional amounts (in
the relevant currency) so that such additional amounts, together with amounts
otherwise payable under the guarantee
<PAGE>
56
contained in this Section 12, will yield to such Bank, after deduction from
such increased amount of all Taxes required to be withheld or deducted
therefrom, the amount stated to be payable under the guarantee contained in
this Section 12. If CFC fails to pay any Taxes when due following notification
by any Bank as provided above, CFC shall indemnify such Bank for any
incremental taxes, interest or penalties that may become payable by any Bank
as a result of any such failure by CFC to make such payment. Within 30 days
after the payment by CFC of any Taxes withheld or deducted from any amount
payable to any Bank under the guarantee contained in this Section 12, CFC will
furnish to such Bank (with a copy to the Administrative Agent), the original
or a certified copy of a receipt evidencing payment thereof.
12.7 Judgments Relating to Guarantee. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
due under the guarantee contained in this Section 12 in one currency into
another currency, CFC agrees, to the fullest extent that it may effectively do
so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the relevant Bank (or
agent acting on its behalf) could purchase the first currency with such other
currency for the first currency on the Banking Day immediately preceding the
day on which final judgment is given.
(b) The obligations of CFC in respect of any sum due under
the guarantee contained in this Section 12 shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with this Section 12 (the "Agreement Currency"), be
discharged only to the extent that, on the Banking Day following receipt by
any Bank (or agent acting on its behalf) (the "Applicable Creditor") of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor
may in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of
the Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, CFC agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss, provided, that if the amount of the Agreement
Currency so purchased exceeds the sum originally due to the Applicable
Creditor, the Applicable Creditor agrees to remit such excess to CFC. The
obligations of CFC contained in this Section 12.7 shall survive the
termination of the guarantee contained in this Section 12 and the payment of
all amounts owing hereunder.
12.8 Independent Obligations. The obligations of CFC under
the guarantee contained in this Section 12 are independent of the obligations
of each Subsidiary Borrower, and a separate action or actions may be brought
and prosecuted against CFC whether or not the relevant Subsidiary Borrower be
joined in any such action or actions. CFC waives, to the full extent permitted
by law, the benefit of any statute of limitations affecting its liability
hereunder or the enforcement thereof.
SECTION 13. MISCELLANEOUS
13.1 Amendments and Waivers. With the written consent of the
Required Banks, the Administrative Agent and the Facility Borrowers may, from
time to time, enter into written amendments, supplements or modifications
hereto for the purpose of adding any provisions to this Agreement or changing
in any manner the rights of the Banks or of either Facility Borrower
hereunder, and with the written consent of the Required Banks the
Administrative Agent on behalf of the Banks may execute and deliver to the
Facility Borrowers a written instrument waiving, on such terms and conditions
as the Administrative Agent may specify (with such consent) in such
instrument, any of the requirements of this Agreement or any Default or Event
of Default and its consequences;
<PAGE>
57
provided, however, that no such waiver and no such amendment, supplement or
modification shall (a) extend the maturity of any Facility Loan, or reduce the
rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof, or reduce the amount or extend the time of payment
of any Facility Fee or Acceptance Fee hereunder, or change the amount or terms
of any Bank's Commitment, or amend, modify or waive any provision of this
Section 13.1 or reduce the percentages specified in the definition of Required
Banks, Required U.S. Banks or Required Canadian Banks, or consent to the
assignment or transfer by either Facility Borrower of any of its rights and
obligations under this Agreement or amend, modify or waive the provisions of
Section 13.8, in each case without the prior written consent of each Bank
directly affected thereby; or (b) release CFC from its obligations under the
guarantee contained in Section 12 without the prior written consent of each C$
Bank and each Bank party to a Foreign Currency Subfacility; or (c) amend,
modify or waive any provision of Section 10 without the prior written consent
of each Agent directly affected thereby; or (d) amend, modify or waive any
provision of Section 10.10 without the prior written consent of each Managing
Agent. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Banks and shall be binding upon each
Facility Borrower, the Banks, each Agent and all future holders of the
obligations owing by the Facility Borrowers hereunder. In the case of any
waiver, each Facility Borrower, the Banks and each Agent shall be restored to
their former position and rights hereunder, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. The Administrative Agent shall give the
Canadian Administrative Agent prompt written notice of any waiver, amendment,
supplement or modification entered into pursuant to this Section 13.1.
13.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing or by
facsimile transmission or telex and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand
or when deposited in the mail, first class or air postage prepaid, or, in the
case of facsimile transmission, when transmitted, receipt acknowledged, or, in
the case of telex notice, when sent, answerback received, addressed as follows
in the case of the Facility Borrowers, the Canadian Administrative Agent and
the Administrative Agent, and as set forth in its Addendum in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the obligations owing
by the Facility Borrowers hereunder:
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58
CFC: Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Vice President and Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Facsimile: 810-948-3801
CCCL: Chrysler Credit Canada Ltd.
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Vice President and Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Facsimile: 810-948-3801
The Administrative Agent: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Rosemary Bradley
Facsimile: 212-972-9854
With copies to: Chemical Bank Agency Services
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Sandra Miklave
Telex: 353-006
Answerback: ABSC NYK
Facsimile: 212-622-0002
The Canadian
Administrative Agent: Royal Bank of Canada
Loan Structuring and Syndications
Royal Bank Plaza, South Tower
200 Bay Street
Toronto, Ontario
Canada M5J 2J5
Attention: Manager, Business Operations
Facsimile: 416-974-2407
provided that any notice, request or demand to or upon an Agent pursuant to
Section 2.2, 2.3, 2.4, 3.2, 3.3, 3.4, 3.5, 4.6 or 4.7 shall not be effective
until received.
13.3 Clearing Accounts. (a) Each US$ Bank irrevocably
authorizes the Administrative Agent and CASC to cause such Bank's Clearing
Account to be debited as contemplated in Sections 2.2 and 2.3 and to cause to
be created an overdraft in such account if the balance in such Bank's Clearing
Account on a particular Borrowing Date is less than the amount of the U.S.
Loan to be made by such Bank on such day. In addition each US$ Bank
irrevocably authorizes the Administrative Agent and CASC to cause such Bank's
Clearing Account to be credited, as
<PAGE>
59
contemplated in Section 4.8(a), with its ratable share of payments received by
the Administrative Agent from CFC. The Clearing Account of each US$ Bank shall
be maintained at its own expense and free of charge to the Administrative
Agent, CASC and CFC.
(b) The Administrative Agent may at any time in its sole
discretion, upon prior notice to CFC and the US$ Banks, discontinue the use of
ACH procedures in connection with U.S. Loans made pursuant hereto, and the US$
Banks shall thereafter fund each U.S. Loan required to be made by them
hereunder by making available the amount thereof to the Administrative Agent
for the account of CFC at the office of the Administrative Agent set forth in
Section 13.2 in funds immediately available to the Administrative Agent.
13.4 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of either Agent or any Bank, any
right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or of
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
13.5 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement.
13.6 Payment of Expenses. Each of CFC and, as applicable,
CCCL, agrees:
(a) to pay or reimburse the Administrative Agent for all
reasonable out-of-pocket costs and expenses incurred in connection
with the preparation and execution of, and any amendment, supplement
or modification to or waiver under, this Agreement and any other
documents prepared in connection herewith, and the consummation of
the transactions contemplated hereby and the administration of this
Agreement, including, without limitation, the reasonable fees and
disbursements of Simpson Thacher & Bartlett, special counsel to the
Administrative Agent and the Banks;
(b) to pay or reimburse each Bank and each Agent for all
costs and expenses (other than legal fees and disbursements) incurred
in connection with the enforcement or preservation of any rights
under this Agreement and any such other documents, and the reasonable
fees and disbursements of one firm of special counsel in each of the
United States and Canada to the Agents and the Banks; and
(c) to (i) indemnify each C$ Bank from and against any loss
or expense which such C$ Bank may sustain or incur as a consequence
of the imposition or payment of any Taxes or Other Taxes imposed
under the laws of Canada or any province thereof in respect of any
Facility Fee payable to such C$ Bank's Related US$ Bank, except that
no C$ Bank may request indemnification for any Taxes or Other Taxes
under this clause (i) to the extent that (x) such Taxes or Other
Taxes would have been avoided or reduced by such Bank's properly
claiming the benefit of any exemption from or reduction of such Taxes
or Other Taxes (whether provided by statute, treaty or otherwise) or
by such Bank's taking any other action which in its judgment is
reasonable to avoid or reduce such Taxes or Other Taxes, provided
that such Bank shall not be required to (1) take any action which in
the reasonable judgment of such Bank could directly or indirectly
result in any increased cost or expense or in any loss of opportunity
to such Bank unless the relevant Facility Borrower shall have
provided to such
<PAGE>
60
Bank indemnity or reimbursement therefor in form and substance
reasonably satisfactory to such Bank or (2) claim or apply any tax
credit against such Taxes or Other Taxes or (y) in the case of Other
Taxes, such Other Taxes result from the voluntary allocation by such
Related US$ Bank of any portion of such Facility Fee to such C$ Bank;
(ii) indemnify each Bank from and against liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (other than legal fees and disbursements)
of any kind whatsoever (and, with respect to any proceeding or
related proceedings, the reasonable fees and disbursements of one
firm of special counsel to the relevant Banks in connection with such
proceeding(s)) which may at any time (including, without limitation,
at any time following the payment of the Loans) be imposed on,
incurred by or asserted against such Bank in any way relating to or
arising out of this Agreement or any other documents contemplated by
or referred to herein or the transactions contemplated hereby or any
action taken or omitted by such Bank under or in connection with any
of the foregoing, provided that no Borrower shall be liable for the
payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from (x) the ordinary course of
administration of this Agreement or such other documents by any Bank
or (y) any Bank's gross negligence or willful misconduct or bad
faith; and (iii) pay or reimburse (x) each Bank for any payments made
by such Bank to either Agent or CASC pursuant to the provisions of
Section 10.7 and (y) each Agent and CASC for any and all liabilities,
expenses or disbursements incurred by any of them which pursuant to
the provisions of Section 10.7 are the subject of indemnification
payments from the Banks to the extent that such Agent or CASC, as the
case may be, for whatever reason, did not receive such
indemnification payments from any Bank or Banks.
The agreements in this Section 13.6 shall survive repayment of the Loans and
all other amounts payable hereunder.
13.7 Successors and Assigns. (a) This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns except that (x) no Facility Borrower may
assign its rights or obligations hereunder without the prior consent of all of
the Banks (in the case of CFC) or all of the C$ Banks (in the case of CCCL),
and (y) no assignment by a Bank of any of its rights or obligations hereunder
shall be effective unless (i) the assignee is a Commercial Bank (unless
otherwise agreed by CFC in its sole discretion), (ii) the assignee shall have
designated in writing to the Administrative Agent an account at the office of
a bank that is an ACH member to serve as such assignee's "Clearing Account"
hereunder, (iii) in the event of an assignment of less than all of such Bank's
obligations, (A) the principal amount of such Bank's obligations (which may
constitute U.S. Commitments and/or Canadian Commitments) so assigned shall be
in an aggregate amount of $10,000,000 or greater and (B) after giving effect
to any such assignment, the transferor Bank and the assignee (in each case
together with any Bank which is a subsidiary, affiliate, branch or agency of
such transferor Bank or assignee, respectively) shall each have obligations
hereunder (which may constitute U.S. Commitments and/or Canadian Commitments)
aggregating not less than $24,500,000 (unless, in each case, at CFC's
discretion, a lesser amount is mutually agreed upon between CFC and such Bank
or assignee, as applicable), (iv) CFC and the Administrative Agent shall have
consented to the making of such assignment (which consent in each case shall
not be unreasonably withheld or delayed), (v) the transferor Bank, the
assignee, the Administrative Agent and CFC (if its consent to such assignment
is required hereunder) shall have executed and delivered an Assignment and
Acceptance substantially in the form of Exhibit D-1, (vi) after giving effect
to any such assignment by a US$ Bank, the Aggregate U.S./Foreign Extensions of
Credit of such Bank shall not exceed its U.S. Commitment, and (vii) the
transferor Bank shall have paid to the Administrative Agent a registration and
processing fee of $2,500 (or such lesser amount as may be agreed to by the
<PAGE>
61
Administrative Agent); provided, however, that no consent by CFC shall be
required in the case of assignments to a Commercial Bank controlled by,
controlling or under common control with an assignor Bank or pursuant to a
merger or consolidation of such Bank with another entity or a similar
transaction involving such Bank and provided further, that a U.S. L/F Bank or
C$ L/F Bank may so assign all or a portion of such rights and obligations to a
Person that shall become a U.S. L/F Bank or C$ L/F Bank, as the case may be,
hereunder only if notice of the designation of such new L/F Bank shall have
been delivered to the Administrative Agent (and, in the case of a new C$ L/F
Bank, the Canadian Administrative Agent) prior to such assignment. Upon the
effectiveness of any assignment pursuant to this Section 13.7, Schedule I
shall be deemed to be amended to reflect such assignment. Each Bank may sell
participations in its Commitment or in all or any part of any Facility Loan
made by it hereunder to a Commercial Bank, in which event the participant
shall not have any rights under this Agreement (the participant's rights
against such Bank in respect of such participation to be those set forth in
the agreement executed by such Bank in favor of the participant thereto) and
all amounts payable by the Facility Borrowers under Sections 2, 3 and 4 shall
be determined as if such Bank had not sold such participations; provided that
(1) the terms of any participation agreement or certificate relating to any
such participation shall prohibit any subparticipations by such participant;
(2) any such participation agreement or certificate shall permit the Bank
granting such participations the right to consent to waivers, amendments or
supplements to this Agreement without the consent of such participant except
in the case of (x) waivers of any Default or Event of Default described in
Section 9(a), and (y) any amendment or modification extending the maturity of
any Facility Loan, or reducing the interest rate in respect of any Facility
Loan, or reducing any Facility Fee, or extending the time of payment of
interest on any Facility Loan or of any Facility Fee, or reducing the
principal amount of any Facility Loan, in each case to the extent such waiver,
amendment or supplement directly affects such participant and (3) a
participating interest of at least $10,000,000 shall be sold pursuant to any
such participation (unless, at CFC's discretion, a lesser amount is mutually
agreed upon between CFC and such Bank).
(b) Nothing herein shall prohibit any US$ Bank from pledging
or assigning all or any portion of its U.S. Loans to any Federal Reserve Bank
in accordance with applicable law. In order to facilitate such pledge or
assignment, CFC hereby agrees that, upon request of any US$ Bank at any time
and from time to time after CFC has made its initial borrowing hereunder, CFC
shall provide to such Bank, at CFC's own expense, a promissory note,
substantially in the form of Exhibit E, evidencing the U.S. R/C Loans or U.S.
L/F Loans owing to such Bank.
(c) (i) The Administrative Agent shall maintain at its
address referred to in Section 13.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "U.S. Register") for the recordation of
the names and addresses of the US$ Banks, the U.S. Commitments of such Banks,
and the principal amount of each category of U.S. Loan owing to each such Bank
from time to time. The entries in the U.S. Register shall be conclusive, in
the absence of clearly demonstrable error, and CFC, the Administrative Agent
and the Banks may treat each Person whose name is recorded in the U.S.
Register as the owner of the U.S. Loans recorded therein for all purposes of
this Agreement. The U.S. Register shall be available for inspection by CFC or
any US$ Bank at any reasonable time and from time to time upon reasonable
prior notice. The Administrative Agent shall give prompt written notice to CFC
of the making of any entry in the U.S. Register or any change in any such
entry.
(ii) The Canadian Administrative Agent shall maintain at its
address referred to in Section 13.2 a register (the "Canadian Register") for
the recordation of the names and addresses of the C$ Banks, the Canadian
Commitments of such Banks, and the principal amount of each category of C$
Loan owing to each such Bank from time to time. The entries in the Canadian
Register shall be conclusive, in the absence of clearly demonstrable error,
and CCCL, the Canadian Administrative
<PAGE>
62
Agent and the Banks may treat each Person whose name is recorded in the
Canadian Register as the owner of the C$ Loans recorded therein for all
purposes of this Agreement. The Canadian Register shall be available for
inspection by CFC, CCCL or any C$ Bank at any reasonable time and from time to
time upon reasonable prior notice. The Canadian Administrative Agent shall
give prompt written notice to CCCL of the making of any entry in the Canadian
Register or any change in any such entry.
13.8 Right of Set-off. Upon (a) the occurrence and during
the continuance of an Event of Default and (b) with the consent of the
Required Banks, each Bank is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank (including,
without limitation, its branches) to or for the credit or the account of
either Facility Borrower against any and all of the obligations of such
Facility Borrower now or hereafter existing under this Agreement, irrespective
of whether or not such Bank shall have made any demand under this Agreement
and although such obligations may be unmatured. Each Bank agrees promptly to
notify the relevant Facility Borrower after any such set-off and application
made by such Bank, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Bank
under this Section 13.8 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Bank may
have.
13.9 Adjustments. If any Bank (a "benefitted Bank") shall at
any time, except in connection with any termination, replacement or assignment
of or by such Bank pursuant to this Agreement, receive any payment of all or
part of its U.S. Loans or C$ Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in clause
(f) of Section 9, or otherwise) in a greater proportion than any such payment
to, or any collateral received by, any other Bank, if any, in respect of such
other Bank's U.S. Loans or C$ Loans, as the case may be, or interest thereon,
such benefitted Bank shall purchase for cash from the other US$ Banks or C$
Banks, as the case may be, such portion of each such other Bank's U.S. Loans
or C$ Loans, as the case may be, or shall provide such other relevant Banks
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Bank to share the excess payment or
benefits of such collateral or proceeds ratably with each of the other
relevant Banks; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Bank, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. Each Facility Borrower
agrees that each Bank so purchasing a portion of another Bank's U.S. Loans or
C$ Loans, as the case may be, may exercise all rights of payment (including,
without limitation, rights of set-off) with respect to such portion as fully
as if such Bank were the direct holder of such portion.
13.10 New Banks; Commitment Increases; Commitment
Reallocations. (a) With the consent of CFC and upon notification to the
Administrative Agent, one or more additional Commercial Banks may become a
party to this Agreement by executing a New Bank Supplement hereto with CFC and
the Administrative Agent, substantially in the form of Exhibit D-2, whereupon
such Commercial Bank (herein called a "New Bank") shall become a Bank for all
purposes and to the same extent as if originally a party hereto and shall be
bound by and entitled to the benefits of this Agreement, and Schedule I hereto
shall be deemed to be amended to add the name and Commitment of such New Bank.
Each New Bank shall be designated as a US$ Bank with a U.S. Commitment and/or
a C$ Bank with a Canadian Commitment, as specified in such New Bank
Supplement.
<PAGE>
63
(b) With the consent of CFC and upon notification to the
Administrative Agent, any Bank may increase the amount of its Commitment by
executing a Commitment Increase Supplement hereto with CFC and the
Administrative Agent, substantially in the form of Exhibit D-3, whereupon such
Bank shall be bound by and entitled to the benefits of this Agreement with
respect to the full amount of its Commitment as so increased (which increase
shall be allocated to its U.S. Commitment and/or its Canadian Commitment, as
specified in such Commitment Increase Supplement), and Schedule I hereto shall
be deemed to be amended to add the increased Commitment of such Bank.
(c) With the consent of the Administrative Agent (which
shall not be unreasonably withheld), so long as no Default or Event of Default
shall have occurred and be continuing, CFC may reallocate all or any portion
of the Canadian Commitment of any C$ Bank to the U.S. Commitment of such C$
Bank's Related US$ Bank or reallocate all or any portion of the U.S.
Commitment of any US$ Bank to the Canadian Commitment of such US$ Bank's
Related C$ Bank by executing a Commitment Reallocation Supplement hereto with
the Administrative Agent, substantially in the form of Exhibit D-4, whereupon
the affected US$ Bank and C$ Bank shall be bound by and entitled to the
benefits of this Agreement with respect to the full amount of the U.S.
Commitment or Canadian Commitment of such Bank after giving effect to such
reallocation, and Schedule I hereto shall be deemed to be amended to reflect
such reallocation. Each reallocation pursuant to this Section 13.10(c) shall
be subject to the prior written consent of the affected US$ Bank and C$ Bank,
provided, that (i) each C$ Bank and its Related US$ Bank confirm that, as of
the date hereof, such C$ Bank and its Related US$ Bank are willing to consider
any reallocation of such Related US$ Bank's U.S. Commitment to such C$ Bank's
Canadian Commitment which does not increase such C$ Bank's Canadian Commitment
above its Maximum Canadian Commitment Amount and (ii) no such consent shall be
required in connection with the reallocation of a C$ Bank's Canadian
Commitment after such Bank has sought reimbursement pursuant to Section
13.6(c)(i) (it being understood that such reallocation shall not affect CFC's
obligation to make such reimbursement) so long as such reallocation will not
result in any additional costs, liabilities or expenses to such Bank or its
Related US$ Bank (other than liabilities consisting of the assumption by such
US$ Bank of such reallocated Commitment and the making of any U.S. Loans in
connection therewith).
(d) (i) If on the date upon which a Commercial Bank becomes
a New Bank (designated as a US$ Bank), upon which a Bank obtains a U.S.
Commitment or upon which a US$ Bank's U.S. Commitment is changed pursuant to
Section 13.10, there is an unpaid principal amount of U.S. R/C Loans, CFC
shall borrow U.S. R/C Loans from, or prepay U.S. R/C Loans of, such Bank, as
applicable, in an amount such that, after giving effect thereto, the quotient
of (x) the U.S. R/C Loans of such Bank of each Type (and, in the case of
Eurodollar Loans, of each Eurodollar Tranche) and (y) such Bank's U.S.
Commitment is equal to the comparable quotient of each other US$ Bank;
provided, that after the first Foreign Currency Subfacility becomes effective
hereunder, the amount of such borrowing or prepayment shall instead be
determined by reference to the amount of each Type of U.S. R/C Loan (and, in
the case of Eurodollar Loans, of each Eurodollar Tranche) which would have
been outstanding from such Bank if (1) each such Type or tranche had been
borrowed on the date of the relevant change in such Bank's U.S. Commitment
after giving effect to such change and (2) the aggregate amount of each such
Type or tranche requested to be so borrowed had been increased or decreased,
as the case may be, to the extent necessary to give effect, with respect to
such Bank, to the first sentence of Section 4.8(a). Any Eurodollar Loan
borrowed pursuant to the preceding sentence shall bear interest at a rate
equal to the respective interest rates then applicable to the Eurodollar Loans
of the other US$ Banks in the same Eurodollar Tranche.
(ii) If on the date upon which a Commercial Bank becomes a
New Bank (designated as a C$ Bank), upon which a Bank obtains a Canadian
Commitment or upon which a C$ Bank's
<PAGE>
64
Canadian Commitment is changed pursuant to Section 13.10, there is an unpaid
principal amount of C$ Loans (other than C$ L/F Loans), CCCL shall borrow C$
Loans from, or prepay or cash collateralize (in the case of Bankers'
Acceptances) C$ Loans of, such Bank, as applicable, in an amount such that,
after giving effect thereto, the quotient of (x) the C$ Loans (other than C$
L/F Loans) of such Bank of each category (and, in the case of Bankers'
Acceptances, of each maturity) and (y) such Bank's Canadian Commitment is
equal to the comparable quotient of each other C$ Bank. Any Bankers'
Acceptance borrowed pursuant to the preceding sentence shall yield an
Acceptance Fee at a rate equal to the respective Acceptance Fee rates then
applicable to the Bankers' Acceptances of the other C$ Banks having comparable
maturities.
(e) The Administrative Agent shall advise the Canadian
Administrative Agent and the Banks of each addition of a New Bank and of each
change in a Bank's U.S. Commitment or Canadian Commitment pursuant to this
Section 13.10 and of the amount of any borrowing or prepayment required to be
made from or to any such Bank pursuant to this Section 13.10 upon such
addition or change.
13.11 Changing Designations of Liquidity Facility Banks. CFC
shall have the right to change the designation of a Bank, U.S. L/F Bank or C$
L/F Bank to (a) cause a US$ Bank to become a U.S. L/F Bank, (b) cause a C$
Bank to become a C$ L/F Bank or (c) cause a U.S. L/F Bank or C$ L/F Bank to no
longer be a U.S. L/F Bank or C$ L/F Bank, as the case may be, provided that no
such change shall become effective unless (i) the Bank affected thereby shall
have agreed to such change and (ii) prior written notification thereof shall
have been delivered to the relevant Agent. Upon the occurrence of any change
of designation pursuant to this Section 13.11, Schedule I shall be deemed to
be amended to reflect such change.
13.12 Tax Forms. If any Bank which becomes a party to this
Agreement on any day after the date hereof pursuant to Section 13.7 or 13.10
is organized under the laws of any jurisdiction other than the United States
or any state thereof, such Bank shall, on the date such Person becomes a Bank,
(i) represent to the transferor Bank (if applicable), the Administrative Agent
and the Facility Borrowers that under applicable law and treaties no taxes
will be required to be withheld by the Administrative Agent, the Facility
Borrowers or the transferor Bank (if applicable) with respect to any payments
to be made to such Bank in respect of the Facility Loans hereunder, (ii)
furnish to the transferor Bank (if applicable), the Administrative Agent and
CFC either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein such Bank claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments hereunder) and
(iii) agree (for the benefit of the transferor Bank (if applicable), the
Administrative Agent and the Facility Borrowers) to provide the transferor
Bank (if applicable), the Administrative Agent and CFC a new Form 4224 or Form
1001 upon the expiration or obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Bank, and to comply from
time to time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
13.13 Counterparts. This Agreement may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with CFC and the Administrative Agent.
13.14 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
<PAGE>
65
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
13.15 Submission to Jurisdiction; Waivers. Each Facility
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding commenced by any party hereto relating to this
Agreement, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that services of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to CFC at its address set forth in Section 13.2 or at such
other address of which the Administrative Agent shall have been
notified with copies addressed as set forth in Section 13.2; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
13.16 Integration. This Agreement represents the agreement
of each party with respect to the subject matter hereof and there are no
promises or representations by either Agent or any Bank relative to the
subject matter hereof not reflected herein.
13.17 Judgments Relating to CCCL. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder by CCCL in one currency into another currency, CCCL agrees, to the
fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the relevant Bank could purchase the first currency with
such other currency for the first currency on the Banking Day immediately
preceding the day on which final judgment is given.
(b) The obligations of CCCL in respect of any sum due in C$
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than C$, be discharged only to the extent that, on
the Banking Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction
purchase C$ with the Judgment Currency; if the amount of C$
<PAGE>
66
so purchased is less than the sum originally due to the Applicable Creditor in
C$, CCCL agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Applicable Creditor against such loss, provided,
that if the amount of C$ so purchased exceeds the sum originally due to the
Applicable Creditor, the Applicable Creditor agrees to remit such excess to
CCCL. The obligations of the CCCL contained in this Section 13.17 shall
survive the termination of this Agreement and the payment of all other amounts
owing hereunder.
13.18 WAIVERS OF JURY TRIAL. THE FACILITY BORROWERS, THE
ADMINISTRATIVE AGENT, THE CANADIAN ADMINISTRATIVE AGENT AND THE BANKS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
CHRYSLER FINANCIAL CORPORATION
By: /s/ David A. Robison
---------------------
Title: Vice President and Treasurer
CHRYSLER CREDIT CANADA LTD.
By: /s/ David A. Robison
---------------------
Title: Vice President and Treasurer
CHEMICAL BANK,
as Administrative Agent
By: /s/ Rosemary Bradley
---------------------
Title: Vice President
ROYAL BANK OF CANADA,
as Canadian Administrative Agent
By: /s/ William Stanley
---------------------
Title: Manager, Business Operations
Exhibit 10-I
CONFORMED COPY
=============================================================================
FIFTH AMENDED AND RESTATED COMMITMENT
TRANSFER AGREEMENT
Dated as of May 1, 1995
CHRYSLER FINANCIAL CORPORATION,
as Borrower
CHEMICAL BANK, as Agent
============================================================================
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS................................................. 1
1.1 Defined Terms............................................... 1
1.2 Other Definitional Provisions............................... 11
SECTION 2. AMOUNT AND TERMS OF THE COMMITMENTS......................... 11
2.1 The Commitments............................................. 11
2.2 Procedure for Borrowing..................................... 11
2.3 Repayment of Outstanding Loans.............................. 12
2.4 Evidence of Debt............................................ 12
2.5 Prepayments................................................. 13
2.6 Minimum Amount of Eurodollar Tranches....................... 13
2.7 Interest Rate and Payment Dates............................. 13
2.8 Mandatory Repayments........................................ 14
2.9 Conversion and Continuation Options......................... 14
2.10 Computation of Interest.................................... 14
2.11 Inability to Determine Eurodollar Rate..................... 15
2.12 Pro Rata Treatment and Payments............................ 15
2.13 Increased Costs............................................ 16
2.14 Transfer of Eurodollar Loans............................... 17
2.15 Indemnity.................................................. 17
2.16 Taxes...................................................... 18
2.17 Transferred Commitment..................................... 19
2.18 Use of Proceeds............................................ 19
SECTION 3. REPRESENTATIONS AND WARRANTIES.............................. 19
3.1 Financial Condition......................................... 19
3.2 No Change................................................... 20
3.3 Corporate Existence......................................... 20
3.4 Corporate Authorization; No Violation....................... 20
3.5 Government Authorization.................................... 20
3.6 Federal Regulations......................................... 20
3.7 Enforceable Obligations..................................... 20
3.8 No Material Litigation...................................... 21
3.9 Taxes....................................................... 21
3.10 ERISA...................................................... 21
3.11 Investment Company Act; Other Regulations.................. 21
3.12 Existing Financial Covenants............................... 21
SECTION 4. CONDITIONS PRECEDENT ....................................... 21
4.1 Conditions to Effectiveness. .............................. 21
4.2 Conditions to All Loans..................................... 22
(a) Representations and Warranties....................... 22
(b) No Default or Event of Default....................... 22
SECTION 5. AFFIRMATIVE COVENANTS....................................... 22
5.1 Financial Statements, etc................................... 23
-i-
<PAGE>
Page
5.2 Maintenance of Existence.................................... 23
5.3 Notices..................................................... 24
SECTION 6. NEGATIVE COVENANTS.......................................... 24
6.1 Debt to Equity Ratio........................................ 24
6.2 Limitation on Transactions with Affiliates.................. 24
6.3 Limitation on Fundamental Change............................ 24
6.4 Limitation on Liens......................................... 24
6.5 Additional Covenants........................................ 26
SECTION 7. EVENTS OF DEFAULT........................................... 27
SECTION 8. THE AGENT................................................... 29
8.1 Appointment................................................. 29
8.2 Delegation of Duties........................................ 29
8.3 Exculpatory Provisions...................................... 29
8.4 Reliance by Agent and CASC.................................. 30
8.5 Notice of Default........................................... 30
8.6 Non-Reliance on Agent, Other Banks and CASC................. 30
8.7 Indemnification............................................. 31
8.8 Agent in its Individual Capacity............................ 31
8.9 Successor Agent............................................. 31
SECTION 9. MISCELLANEOUS............................................... 31
9.1 Amendments and Waivers...................................... 31
9.2 Notices..................................................... 32
9.3 Clearing Accounts........................................... 33
9.4 No Waiver; Cumulative Remedies.............................. 33
9.5 Survival of Representations and Warranties.................. 34
9.6 Payment of Expenses......................................... 34
9.7 Successors and Assigns; Participations and Assignments...... 34
9.8 Right of Set-off............................................ 36
9.9 Adjustments................................................. 36
9.10 New Banks.................................................. 36
9.11 Increase in Commitments.................................... 37
9.12 Tax Forms.................................................. 37
9.13 Counterparts............................................... 37
9.14 Governing Law.............................................. 38
9.15 Submission to Jurisdiction; Waivers........................ 38
9.16 Integration................................................ 38
9.17 Restatement................................................ 38
9.18 WAIVERS OF JURY TRIAL..................................... 39
-ii-
<PAGE>
SCHEDULES
- ---------
Schedule I Banks
Schedule II Existing Financial Covenants
EXHIBITS
- --------
Exhibit A-1 Form of Opinion of Simpson Thacher & Bartlett
Exhibit A-2 Form of Opinion of General Counsel
Exhibit B Form of New Bank Supplement
Exhibit C Form of Addendum
Exhibit D Form of Closing Certificate
Exhibit E Form of Note
-iii-
<PAGE>
FIFTH AMENDED AND RESTATED COMMITMENT TRANSFER AGREEMENT dated
as of May 1, 1995 among CHRYSLER FINANCIAL CORPORATION, a Michigan corporation
(the "Company"), the several financial institutions parties to this Agreement
(collectively, the "Banks"; individually, a "Bank") and CHEMICAL BANK, a New
York banking corporation ("Chemical"), as agent for the Banks.
W I T N E S S E T H :
WHEREAS, the Company, the Agent and the several financial
institutions parties thereto (the "Original Banks") entered into a Revolving
Credit Agreement dated as of November 15, 1987, as amended by Amendments dated
as of February 4, 1988 and September 1, 1989 (the "Original Credit
Agreement"), pursuant to which the Original Banks agreed to make loans to the
Company for its general corporate purposes;
WHEREAS, the Company and the Banks entered into an Amended and
Restated Commitment Transfer Agreement dated as of December 31, 1989 (as
amended, the "Amended and Restated Commitment Transfer Agreement") for the
purpose of making certain amendments to the Original Credit Agreement;
WHEREAS, the Company and the Banks entered into a Second
Amended and Restated Commitment Transfer Agreement dated as of July 29, 1992
(as amended, the "Second Amended and Restated Commitment Transfer Agreement")
for the purpose of making certain amendments to the Amended and Restated
Commitment Transfer Agreement;
WHEREAS, the Company and the Banks entered into a Third Amended
and Restated Commitment Transfer Agreement dated as of June 30, 1993 (as
amended through the date hereof, the "Third Amended and Restated Commitment
Transfer Agreement") for the purpose of making certain amendments to the
Second Amended and Restated Commitment Transfer Agreement;
WHEREAS, the Company and the Banks entered into a Fourth
Amended and Restated Commitment Transfer Agreement dated as of May 23, 1994
(as amended through the date hereof, the "Fourth Amended and Restated
Commitment Transfer Agreement") for the purpose of making certain amendments
to the Third Amended and Restated Commitment Transfer Agreement; and
WHEREAS, the Company has requested that the Banks enter into
this Fifth Amended and Restated Commitment Transfer Agreement for the purpose
of making certain amendments to the Fourth Amended and Restated Commitment
Transfer Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree that from and after the
Effective Date (as hereinafter defined) the Fourth Amended and Restated
Commitment Transfer Agreement shall be amended and restated in its entirety as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined
in the caption to this Agreement shall have the meanings set forth therein and
the following terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
<PAGE>
2
"Accumulated Funding Deficiency" shall mean any "accumulated
funding deficiency" as defined in Section 302 of ERISA.
"ACH" shall mean an Automated Clearing House.
"Addendum" shall mean an instrument, substantially in the form
of Exhibit C, by which a Bank becomes a party to this Agreement.
"Affected Bank" shall have the meaning set forth in subsection
2.13.
"Affiliate" of any Person, shall mean any other Person that,
directly or indirectly, controls or is controlled by or is under
common control with such Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled
by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agent" shall mean Chemical Bank and its affiliates, in their
respective capacities as administrative agent for the Banks under this
Agreement and arranger of the Commitments, together with any of their
respective successors.
"Agreement" shall mean this Fifth Amended and Restated
Commitment Transfer Agreement, as the same may be amended, modified or
supplemented from time to time.
"Applicable Margin" shall mean, with respect to each Eurodollar
Loan at any date, the applicable percentage per annum set forth below
based upon the Status and Utilization on such date (provided that if
the Commitments have been terminated prior to such date, the
Utilization for such date shall be deemed to be greater than 50%):
<TABLE>
<CAPTION>
Level I Level II Level III Level IV Level V
Utilization Status Status Status Status Status
- ----------- ------- -------- --------- -------- -------
<S> <C> <C> <C> <C> <C>
Less than or equal to
50%: 0.2500% 0.2500% 0.3000% 0.3750% 0.5000%
Greater than 50%: 0.3750% 0.3750% 0.4250% 0.5000% 0.6250%
</TABLE>
"Assessment Rate" shall mean for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most recently
estimated by the Agent as the then current net annual assessment rate
that will be employed in determining amounts payable by Chemical to
the Federal Deposit Insurance Corporation (or any successor) for
insurance by such Corporation (or any successor) of time deposits made
in Dollars at Chemical's domestic offices.
"Available Transferred Commitment" shall mean, as to any Bank,
at a particular time, an amount equal to the excess, if any, of (a)
the amount of such Bank's Commitment at such time over (b) the
aggregate unpaid principal amount at such time of all Loans made by
such Bank pursuant to subsection 2.1; collectively, as to all the
Banks, the "Available Transferred Commitments".
<PAGE>
3
"Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Effective Federal Funds Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time
to time by Chemical as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced; "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment
Rate; and "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Federal Reserve
Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices
of the Federal Reserve Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or,
if such rate shall not be so reported for such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York City
time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Agent from three New York City
negotiable certificate of deposit dealers of recognized standing
selected by it. If for any reason the Agent shall have determined
(which determination shall be conclusive absent clearly demonstrable
error) that it is unable to ascertain the Base CD Rate or the
Effective Federal Funds Rate or both for any reason, including the
inability or failure of the Agent to obtain sufficient quotations in
accordance with the terms thereof, the Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first sentence of
this definition, as appropriate, until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to
a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Effective Federal Funds Rate shall be effective on the effective date
of such change in the Prime Rate, the Three-Month Secondary CD Rate or
the Effective Federal Funds Rate, respectively.
"Base Rate Loans" shall mean Loans hereunder at such time as
they bear interest at a rate based upon the Base Rate.
"Borrowing Date" shall mean any Business Day specified in a
notice pursuant to subsection 2.2 as a date on which the Company
requests the Banks to make Loans hereunder.
"Business Day" shall mean a day other than a Saturday, Sunday
or other day on which commercial banks in New York City are authorized
or required by law to close, except that, when used in connection with
a Eurodollar Loan with respect to which the Eurodollar Rate is
determined based upon the Telerate screen in accordance with the
definition of Eurodollar Rate, "Business Day" shall mean any Business
Day on which dealings in foreign currencies and exchange between banks
may be carried on in London, England and New York, New York.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"CASC" shall mean Chemical Bank Agency Services (and any
successor).
<PAGE>
4
"CFC Affiliate" shall mean any Person that, directly or
indirectly, controls or is controlled by or is under common control
with the Company (including, without limitation, Chrysler and its
subsidiaries, but excluding any Subsidiary). For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect
to any Person, shall mean the power, directly or indirectly, either to
(a) vote 20% or more of the securities (or other equity interests) of
such Person having ordinary voting power or (b) direct or cause the
direction of the management and policies of such Person, whether
through the ownership of voting securities (or other equity interests)
or by contract or otherwise.
"Change of Control" shall mean any of the following events or
circumstances: (a) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended) shall either (i) acquire beneficial ownership of more than
50% of any outstanding class of common stock of Chrysler having
ordinary voting power in the election of directors of Chrysler or (ii)
obtain the power (whether or not exercised) to elect a majority of
Chrysler's directors or (b) the Board of Directors of Chrysler shall
not consist of a majority of Continuing Directors. As used in this
definition, "Continuing Directors" shall mean the directors of
Chrysler on the Effective Date and each other director of Chrysler, if
such other director's nomination for election to the Board of
Directors of Chrysler is recommended by a majority of the then
Continuing Directors.
"Chrysler" shall mean Chrysler Corporation, a Delaware
corporation.
"Chrysler Agreement" shall mean the Revolving Credit Agreement
dated as of July 29, 1994 among Chrysler Corporation, the banks
parties thereto and Chemical Bank as agent for such banks, as the same
may be amended, modified or supplemented from time to time.
"Clearing Account" shall mean, as to any Bank, the bank account
designated in its Addendum, or such other bank account as such Bank
shall designate in writing to the Agent from time to time, provided
that such other bank account shall be maintained at the office of an
ACH member.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" shall mean, as to any Bank, its obligation to make
Loans to the Company pursuant to subsection 2.1 in the amount referred
to therein, as such amount may be determined from time to time
pursuant to subsection 2.17; collectively, as to all the Banks, the
"Commitments".
"Commitment Percentage" shall mean, as to any Bank at any time,
the percentage of the aggregate Commitments then constituted by such
Bank's Commitment.
"Commitment Period" shall mean the period from and including
the Effective Date (or, in the case of an assignee that is not already
a Bank and any New Bank, from the date that such Person becomes party
to this Agreement as provided in subsection 9.7 or 9.10, as
applicable) to but not including the Termination Date or such earlier
date as the Commitments shall terminate as provided herein.
<PAGE>
5
"Commonly Controlled Entity" shall mean an entity, whether or
not incorporated, which is under common control with the Company
within the meaning of Section 4001 of ERISA or is part of a group
which includes the Company and is treated as a single employer under
Section 414 of the Code.
"Contractual Obligation" shall mean, as to any Person, any
enforceable provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a party
or by which it or any of its property is bound.
"D&P" shall mean Duff & Phelps Credit Rating Company and its
successors.
"Debt" shall mean, at any date, the amount which would appear
in accordance with GAAP on a consolidated balance sheet of the Company
and its Subsidiaries on such date opposite the heading "debt" (or any
similar item).
"Default" shall mean any of the events specified in Section 7,
whether or not any requirement for the giving of notice, lapse of
time, or both, or the happening of any other condition, has been
satisfied.
"Dollars" or "$" shall mean lawful currency of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary other than a
Foreign Subsidiary.
"Effective Date" shall mean, subject to satisfaction of the
conditions specified in subsection 4.1, May 5, 1995.
"Effective Federal Funds Rate" shall mean, for any day, the
weighted average of the rates on overnight Federal funds transactions
between members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average quotations for the day
of such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Equity" shall mean, at any date, the amount which would appear
in accordance with GAAP on a consolidated balance sheet of the Company
and its Subsidiaries on such date opposite the heading "total
shareholders' investment" (or any similar item).
"Eurodollar Loan" shall mean any Loan bearing interest at a
rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, in the case of any Eurodollar
Loan, with respect to each day during each Interest Period (other than
any seven-day Interest Period) pertaining to such Eurodollar Loan, the
rate of interest determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the
Telerate screen as of 11:00 A.M., London time, two Business Days prior
to the beginning of such Interest Period, provided, that in the event
that such rate does not appear on Page 3750 of the Telerate Service
(or otherwise on such service), the "Eurodollar Rate" shall be
determined by reference to such other publicly available service for
<PAGE>
6
displaying eurodollar rates as may be agreed upon by the Agent and the
Company. In the absence of such agreement, and in the case of any
seven-day Interest Period pertaining to such Eurodollar Loan, the
"Eurodollar Rate" shall instead be the rate per annum equal to the
average (rounded upward, if necessary, to the nearest 1/100th of 1%)
of the respective rates notified to the Agent by each of the Reference
Banks as the rate at which such Reference Bank is offered Dollar
deposits at or about 10:00 A.M., New York City time, two Business Days
prior to the beginning of the relevant Interest Period, in the
interbank eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurodollar Loans are then
being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable
to the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
"Eurodollar Tranche" shall mean and be a collective reference
to Eurodollar Loans having the same Interest Period, whether or not
originally made on the same day.
"Event of Default" shall mean any of the events specified in
Section 7, provided that any requirement for the giving of notice, the
lapse of time, or both, or the happening of any other condition, has
been satisfied.
"Excess Utilization Period" shall mean any Utilization Period
with respect to which the Utilization exceeds 50%.
"Federal Reserve Board" shall mean the Board of Governors of
the Federal Reserve System of the United States.
"Final Date" shall mean the later of (a) the last day of the
Commitment Period and (b) the date on which all of the Loans shall
have been paid in full.
"Finance Business" shall mean (a) the small loan, personal
finance, consumer finance or installment credit business (including
the business of making collateral loans secured by credit obligations
or personal property), (b) the sales finance business and the business
of purchasing and selling notes and accounts receivable (whether or
not repayable in installments) and interests therein, (c) the
commercial financing and factoring business as generally conducted,
including the leasing of tangible personal property, and (d) any
business (including, without limitation, securitization and other
receivables-based transactions) related to or conducted in connection
with any business of the character referred to in the foregoing
clauses (a), (b) and (c) other than insurance underwriting.
"Finance-Related Insurance Business" shall mean the business of
(a) insuring articles and merchandise the sale or leasing of which is
financed in the ordinary course of the Finance Business, (b) insuring
the lives of individuals who are liable for the payment of the amounts
owing on such sales or leases and writing accident and health
insurance on such individuals, (c) automobile dealership property,
liability, workers compensation and related insurance, (d) motor
vehicle physical damage and liability insurance, and such other
insurance business that is not described in clause (a), (b), (c) or
(d) above to the extent that such insurance business does not produce
at any time aggregate premiums written (net of reinsurance ceded) by
all Subsidiaries in an amount greater than 50% of the aggregate amount
of all premiums written (net of reinsurance ceded) at such time in all
of the insurance business of such Subsidiaries.
"Finance Subsidiary" shall mean any Domestic Subsidiary that is
engaged primarily in the Finance Business.
<PAGE>
7
"Fitch" shall mean Fitch Investors Service, Inc. and its
successors.
"Foreign Subsidiary" shall mean any Subsidiary that (a) is
organized under the laws of any jurisdiction outside the United States
of America, Puerto Rico and Canada, or (b) conducts the major portion
of its business outside the United States of America, Puerto Rico and
Canada.
"GAAP" shall mean generally accepted accounting principles in
the United States of America in effect from time to time, except that
for the purposes of determining compliance with the covenants set
forth in Section 6, "GAAP" shall mean generally accepted accounting
principles in the United States of America in effect on December 31,
1994 applied consistently with those used in compiling the financial
statements included in the 1994 Annual Report.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Indebtedness" shall mean, as applied to any Person, at any
date, (a) indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services which would appear on
a consolidated balance sheet of such Person (or, in the case of the
Company and its Subsidiaries, the Company) prepared in accordance with
GAAP, (b) obligations of such Person under leases which appear as
capital leases on a consolidated balance sheet of such Person prepared
in accordance with GAAP and (c) any withdrawal obligation of such
Person or any Commonly Controlled Entity thereof to a Multiemployer
Plan.
"Interest Period" shall mean with respect to any Eurodollar
Tranche:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Tranche and ending seven days or one, two,
three or six months thereafter, as selected by the Company in
its notice of borrowing or notice of conversion, as the case
may be, given with respect thereto; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Tranche and ending seven days or one, two,
three or six months thereafter, as selected by the Company by
irrevocable notice to the Agent not less than three Business
Days prior to the last day of the then current Interest Period
with respect thereto (or, if no such period is specified,
ending one month thereafter);
provided that, the foregoing provisions are subject to the following:
(A) if any Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry
such Interest Period into another calendar month, in
which event such Interest Period shall end on the
immediately preceding Business Day;
(B) no Interest Period may be selected by the
Company if such Interest Period would end after the
Termination Date; and
<PAGE>
8
(C) any Interest Period of at least one month's
duration that begins on the last Business Day of a
calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the relevant calendar month.
"Level" shall mean any of Level I, Level II, Level III, Level
IV or Level V.
"Level I" shall mean any of the following long-term senior
unsecured debt ratings: A+ or better by S&P, A1 or better by Moody's,
A+ or better by D&P or A+ or better by Fitch.
"Level II" shall mean any of the following long-term senior
unsecured debt ratings: A or A- by S&P, A2 or A3 by Moody's, A or A-
by D&P or A or A- by Fitch.
"Level III" shall mean any of the following long-term senior
unsecured debt ratings: BBB+ or BBB by S&P, Baa1 or Baa2 by Moody's,
BBB+ or BBB by D&P or BBB+ or BBB by Fitch.
"Level IV" shall mean any of the following long-term senior
unsecured debt ratings: BBB- by S&P, Baa3 by Moody's, BBB- by D&P or
BBB- by Fitch.
"Level V" shall mean any of the following long-term senior
unsecured debt ratings: BB+ or lower (or unrated) by S&P, Ba1 or lower
(or unrated) by Moody's, BB+ or lower (or unrated) by D&P or BB+ or
lower (or unrated) by Fitch.
"Lien" shall mean, with respect to any property of any Person,
any mortgage, pledge, hypothecation, encumbrance, lien (statutory or
other), charge or other security interest of any kind in or with
respect to such property (including, without limitation, any
conditional sale or other title retention agreement, and any financing
lease under which such Person is lessee having substantially the same
economic effect as any of the foregoing).
"Loan" shall have the meaning set forth in subsection 2.1(a).
"Long Term Revolving Credit Agreement" shall mean (i) the Long
Term Revolving Credit Agreement, dated as of May 1, 1995, among the
Company, Chrysler Credit Canada Ltd., the financial institutions from
time to time parties thereto, the Managing Agents parties thereto,
Royal Bank of Canada, as Canadian administrative agent, and Chemical
Bank, as administrative agent, as amended, supplemented, or otherwise
modified from time to time, or (ii) if such Revolving Credit Agreement
is refinanced, refunded or otherwise replaced by another bank
revolving credit agreement, such agreement, as amended, supplemented
or otherwise modified from time to time.
"Material Indebtedness" shall mean any item or related items of
Indebtedness (or, in the case of any revolving credit facility, any
commitments) having an aggregate principal amount of at least
$100,000,000 (or the equivalent thereof in any other currency).
"Moody's" shall mean Moody's Investors Service, Inc. and its
successors.
"Multiemployer Plan" shall mean a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
<PAGE>
9
"New Bank" shall have the meaning set forth in subsection 9.10.
"1994 Annual Report" shall mean the Company's annual report to
stockholders for the fiscal year ended December 31, 1994.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any
successor corporation.
"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, a
trust, an unincorporated association, a joint venture or other entity
or a government or any agency or political subdivision thereof.
"Plan" shall mean any pension plan which is covered by Title IV
of ERISA and in respect of which the Company or a Commonly Controlled
Entity is an "employer" as defined in Section 3(5) of ERISA.
"Prohibited Transaction" shall mean any "prohibited
transaction" as defined in Section 406 of ERISA or Section 4975 of the
Code.
"Rating Agencies" shall mean the collective reference to D&P,
Fitch, Moody's and S&P.
"Real Estate Business" shall mean the acquisition, development,
leasing, financing, management, maintenance and disposition of real
property, including, without limitation, automotive dealership
facilities and dealership site control arrangements.
"Reference Banks" shall mean Chemical, Royal Bank of Canada and
Swiss Bank Corporation; provided, that, for the purposes of
determining the Eurodollar Rate with respect to any seven-day Interest
Period, Chemical shall be the sole Reference Bank.
"Reportable Event" shall mean any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder.
"Required Banks" shall mean, at any date, Banks having at least
51% of the aggregate amount of the Commitments at such date or, if the
Commitments have been terminated, Banks holding at least 51% of the
outstanding principal amount of the Loans hereunder.
"Requirement of Law" shall mean, as to any Person, the
Certificate of Incorporation and By-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of
its property is subject.
"Responsible Officer" shall mean, at any particular time, the
Chairman of the Board of Directors, the President, the chief financial
officer, the Vice President - Corporate Finance and Development, the
Treasurer or the Controller of the Company.
"S&P" shall mean Standard & Poor's Ratings Group, and its
successors.
"Short Term Revolving Credit Agreement" shall mean (i) the
Short Term Revolving Credit Agreement, dated as of May 1, 1995, among
the Company, Chrysler Credit Canada
<PAGE>
10
Ltd., the financial institutions from time to time parties thereto,
the Managing Agents parties thereto, Royal Bank of Canada, as Canadian
administrative agent, and Chemical Bank, as administrative agent, as
amended, supplemented, or otherwise modified from time to time, or
(ii) if such Revolving Credit Agreement is refinanced, refunded or
otherwise replaced by another bank revolving credit agreement, such
agreement, as amended, supplemented or otherwise modified from time to
time.
"Significant Subsidiary" shall mean at the time of any
determination thereof (a) any Finance Subsidiary and (b) any other
Subsidiary the assets of which constitute at least 5% of the
consolidated assets of the Company and its Subsidiaries as stated on
the consolidated financial statements of the Company and its
Subsidiaries for the most recently ended fiscal quarter of the
Company, provided, that the term "Significant Subsidiary" shall not
include any Special Purpose Subsidiary.
"Single Employer Plan" shall mean any Plan which is not a
Multiemployer Plan.
"Special Purpose Subsidiary" shall mean any Subsidiary created
for the sole purpose of purchasing assets from the Company or any
Finance Subsidiary with the intention and for the purpose of using
such assets in a securitization transaction.
"Status" shall mean, as to the Company, the existence of Level
I Status, Level II Status, Level III Status, Level IV Status or Level
V Status, as the case may be. For the purposes of this definition,
"Status" will be set at the lowest Level assigned to the Company by
any Rating Agency, unless only one Rating Agency has assigned such
Level to the Company, in which case the Company's Status will be set
at the second lowest Level assigned to the Company by any Rating
Agency.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator
of which is the number one minus the aggregate of the maximum
applicable reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established
by the Federal Reserve Board and any other banking authority to which
Chemical is subject with respect to the Base CD Rate (as such term is
used in the definition of "Base Rate"), for new negotiable nonpersonal
time deposits in Dollars of over $100,000 with maturities
approximately equal to three months. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change
in any reserve percentage.
"Subsidiary" shall mean any corporation of which the Company or
one or more Subsidiaries or the Company and one or more Subsidiaries
shall at the time own shares of any class or classes (however
designated) having voting power for the election of at least a
majority of the members of the board of directors (or other governing
body) of such corporation.
"Termination Date" shall mean as to any Bank the "Termination
Date" as defined in the Chrysler Agreement.
"Transferred Commitment" shall have the meaning set forth in
subsection 2.17.
"Type" shall mean, as to any Loan hereunder, its nature as a
Base Rate Loan or a Eurodollar Loan.
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11
"Utilization" shall mean, for any Utilization Period, the
percentage equivalent of a fraction (a) the numerator of which is the
average daily principal amount of Loans outstanding during such
Utilization Period and (b) the denominator of which is the average
daily amount of the aggregate Commitments of all Banks during such
Utilization Period.
"Utilization Period" shall mean (a) each fiscal quarter of the
Company and (b) any portion of a fiscal quarter of the Company ending
on the Final Date.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto.
(b) As used herein, and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to the Company
and its Subsidiaries not defined in subsection 1.1, and accounting terms
partly defined in subsection 1.1 to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
SECTION 2. AMOUNT AND TERMS OF THE COMMITMENTS
2.1 The Commitments. (a) Subject to the terms and conditions
hereof, each Bank severally agrees to make loans ("Loans") to the Company from
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding not to exceed such Bank's Transferred Commitment at
such time set opposite such Bank's name in the most recent effective notice
delivered by Chrysler pursuant to subsection 2.17 of the Chrysler Agreement.
During the Commitment Period, the Company may use such Commitment by
borrowing, prepaying or repaying the Loans of such Bank, in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
(b) Loans hereunder may be Base Rate Loans or Eurodollar Loans,
or part Base Rate Loans and part Eurodollar Loans, as determined by the
Company and notified to the Agent in accordance with subsection 2.2, provided
that no Eurodollar Loans shall be made after the date which is seven days
prior to the Termination Date.
2.2 Procedure for Borrowing. (a) The Company may borrow under
the Commitments during the Commitment Period on any Business Day, provided
that the Company shall give the Agent irrevocable notice (which notice must be
received by the Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Loans are to be initially Eurodollar Loans, and (ii) one Business
Day prior to the requested Borrowing Date, otherwise) specifying (A) the
amount to be borrowed, (B) the requested Borrowing Date, (C) whether the
borrowing is to be a Eurodollar Loan or a Base Rate Loan or a combination
thereof, and (D) if such borrowing is to be entirely or partly a Eurodollar
Loan, the length of the Interest Period for such Eurodollar Loan. Upon receipt
of such notice, the Agent shall promptly notify each Bank thereof. Not later
than 2:00 P.M., New York City time, on the Borrowing Date specified in such
notice, each Bank shall (subject to subsection 9.3(b)) deposit in its Clearing
Account an amount in immediately available funds equal to the amount of the
Loan to be made by
<PAGE>
12
such Bank. The Agent shall, pursuant to subsection 9.3(a), cause such amount
to be withdrawn from each such Clearing Account and shall make the aggregate
amount so withdrawn available to the Company by depositing the proceeds
thereof in the account of the Company with the Agent on the date such Loans
are made for transmittal by the Agent upon the Company's request. Each
borrowing pursuant to the Commitments shall be in an aggregate principal
amount of the lesser of (i) $25,000,000 or an integral multiple of $1,000,000
in excess thereof or (ii) the then Available Transferred Commitments, provided
that, with respect to any borrowing of Eurodollar Loans, after giving effect
thereto, subsection 2.6 shall not have been contravened.
(b) Unless the Agent shall have received notice from a Bank
prior to a Borrowing Date that such Bank will not make available to the Agent
such Bank's ratable portion of such borrowing through such Bank's Clearing
Account, the Agent may assume that such Bank has made such portion available
to the Agent through such Bank's Clearing Account on the date of such
borrowing in accordance with subsection 2.2(a) and the Agent may, in reliance
upon such assumption, make available to the Company on such date a
corresponding amount. If the Agent does, in such circumstances, make available
to the Company such amount, such Bank shall within three Business Days
following such Borrowing Date make such ratable portion available to the
Agent, together with interest thereon for each day from and including such
Borrowing Date that such ratable portion was not made available, to but
excluding the date such Bank makes its share of such borrowing available to
the Agent, at the Effective Federal Funds Rate. If such amount is so made
available, such payment to the Agent shall constitute such Bank's Loan on such
Borrowing Date for all purposes of this Agreement. If such amount is not so
made available to the Agent, then the Agent shall notify the Company of such
failure and on the fourth Business Day following such Borrowing Date, the
Company shall pay to the Agent such ratable portion, together with interest
thereon for each day that the Company had the use of such ratable portion at
the Effective Federal Funds Rate. Nothing contained in this subsection 2.2(b)
shall relieve any Bank which has failed to make available its ratable portion
of any borrowing hereunder from its obligation to do so in accordance with the
terms hereof.
(c) The failure of any Bank to make the Loan to be made by it
on any Borrowing Date shall not relieve any other Bank of its obligation, if
any, hereunder to make its Loan on such Borrowing Date, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be made by
such other Bank on such Borrowing Date.
2.3 Repayment of Outstanding Loans. The Company shall repay all
outstanding Loans (together with all accrued unpaid interest thereon) on the
Termination Date.
2.4 Evidence of Debt. (a) Each Bank shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Company to the appropriate lending office of such Bank
resulting from each Loan made by such lending office of such Bank from time to
time, including the amounts of principal and interest payable and paid to such
lending office of such Bank from time to time under this Agreement.
(b) The Agent shall maintain the Register pursuant to
subsection 9.7(f), and a subaccount for each Bank, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each Loan
made hereunder, the Type of each Loan made and the Interest Period (if any)
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Company to each Bank hereunder
and (iii) the amount of any sum received by the Agent hereunder from the
Company and each Bank's share thereof.
(c) The entries made in the Register and accounts maintained
pursuant to paragraphs (a) and (b) of this subsection 2.4 shall, to the extent
permitted by applicable law, be prima facie
<PAGE>
13
evidence of the existence and amounts of the obligations of the Company
therein recorded; provided, however, that the failure of any Bank or the Agent
to maintain such account, such Register or such subaccount, as applicable, or
any error therein, shall not in any manner affect the obligation of the
Company to repay (with applicable interest) the Loans made to the Company by
such Bank in accordance with the terms of this Agreement.
2.5 Prepayments. The Company may, at any time and from time to
time, prepay the Loans hereunder, in whole or in part, without premium or
penalty, upon prior notice to the Agent (which notice must be received by the
Agent prior to 10:00 A.M., New York City time, (i) three Business Days prior
to the repayment date in the case of Eurodollar Loans and (ii) one Business
Day prior to the repayment date otherwise) specifying the date and amount of
prepayment, and whether the prepayment is of Eurodollar Loans, Base Rate Loans
or a combination thereof, and, if a combination thereof, the amount allocable
to each, provided that, each prepayment of Eurodollar Loans on a day other
than the last day of the related Interest Period shall require the payment of
any amounts payable by the Company pursuant to subsection 2.15. Upon receipt
of any such notice, the Agent shall promptly notify each Bank thereof. Any
such notice shall be irrevocable and the payment amount specified in such
notice shall be due and payable on the date specified, together with accrued
interest to such date on the amount prepaid. Partial prepayments shall be in
an aggregate principal amount of $25,000,000 or a multiple of $1,000,000 in
excess thereof, and after giving effect thereto subsection 2.6 shall not have
been contravened.
2.6 Minimum Amount of Eurodollar Tranches. All borrowings,
payments, prepayments, continuations and conversions hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising any Eurodollar Tranche shall not be less than $50,000,000.
2.7 Interest Rate and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period therefor on the
unpaid principal amount thereof at a rate per annum equal to the Eurodollar
Rate determined for such Interest Period in accordance with the terms hereof
plus the Applicable Margin.
(b) The Base Rate Loans shall bear interest for each day on the
unpaid principal amount thereof, at a rate per annum equal to the Base Rate
determined for such day.
(c) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection 2.7 plus 1% or (y) in the case of any overdue interest or other
amount, the rate described in subsection 2.7(b) plus 1%, in each case from the
date of such non-payment to (but excluding) the date on which such amount is
paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears (i) with respect to
Eurodollar Loans having an Interest Period of three months or less, on the
last day of such Interest Period, (ii) with respect to Eurodollar Loans having
an Interest Period longer than three months, on each day which is three
months, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period, (iii) with respect to Base
Rate Loans, on the last day of each March, June, September and December, and
(iv) with respect to all Loans, upon each repayment, prepayment or conversion
thereof; provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable on demand. The amount of interest on any
Eurodollar Loans to be paid on any date as specified above
<PAGE>
14
shall in each case be determined under the assumption that the Utilization for
the Utilization Period(s) during which such interest accrued was less than
50%. On the first Business Day following the last day of each Excess
Utilization Period, the Company shall pay to the Agent, for the benefit of the
Banks, an additional amount of interest equal to the excess (if any) of (i)
the amount of interest which accrued during such Utilization Period after
giving effect to the actual Utilization for such Utilization Period (whether
or not such accrued interest was actually payable during such Utilization
Period) over (ii) the amount of interest which would have accrued during such
Utilization Period if the Utilization during such Utilization Period had been
less than 50%.
2.8 Mandatory Repayments. The Company, without notice or
demand, shall immediately repay the Loans hereunder to the extent that the
aggregate amount thereof exceeds the Commitments from time to time in effect.
2.9 Conversion and Continuation Options. (a) The Company may
elect from time to time to convert Eurodollar Loans to Base Rate Loans, by
giving the Agent at least two Business Days' prior irrevocable notice of such
election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Company
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Agent at least three Business Days' prior irrevocable notice of
such election. Any such notice of conversion to Eurodollar Loans shall specify
the length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such notice the Agent shall promptly notify each Bank thereof.
All or any part of outstanding Eurodollar Loans and Base Rate Loans may be
converted as provided herein, provided that (i) no Base Rate Loan may be
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Agent has or the Required Banks have determined in its or
their sole discretion that such conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, subsection 2.6
shall not have been contravened and (iii) no Base Rate Loan may be converted
into a Eurodollar Loan after the date that is seven days prior to the
Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Company giving irrevocable notice to the Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection
1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event
of Default has occurred and is continuing and the Agent has or the Required
Banks have determined in its or their sole discretion that such continuation
is not appropriate, (ii) if, after giving effect thereto, subsection 2.6 would
be contravened or (iii) after the date that is seven days prior to the
Termination Date and provided, further, that if the Company shall fail to give
any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to Base Rate Loans on the last day of such
then expiring Interest Period. Upon receipt of any notice given by the Company
pursuant to this subsection 2.9(b), the Agent shall promptly notify each Bank
thereof.
2.10 Computation of Interest. (a) Interest (other than interest
calculated on the basis of the Prime Rate) shall be calculated on the basis of
a 360-day year, for the actual days elapsed. Interest calculated on the basis
of the Prime Rate shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Agent shall, as soon as
practicable, notify the Company and the Banks of each determination of the
Eurodollar Rate with respect to Eurodollar Loans. Any change in the interest
rate in respect of a Loan resulting from a change in the Base Rate or the
Applicable Margin shall become effective as of the opening of business on the
day on which a change in the Base Rate shall become effective or such
Applicable Margin changes as provided herein, as the case may be. The Agent
shall notify the Company and the Banks of the effective date and the amount of
each such change in the Base Rate.
<PAGE>
15
(b) Each determination, pursuant to and in accordance with any
provision of this Agreement, of an interest rate applicable to a Eurodollar
Loan for any Interest Period by the Agent, and each determination by a
Reference Bank of a rate with respect to a Eurodollar Loan for any Interest
Period to be notified to the Agent pursuant to the definition of "Eurodollar
Rate" shall be conclusive and binding on the Company and the Banks in the
absence of manifest error. The Agent shall, at the request of the Company,
deliver to the Company a statement showing any quotations given by the
Reference Banks and the computations used by the Agent in determining any
interest rate pursuant to subsection 2.7(a).
(c) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the Commitments), or, as the case may
be, Loans made by it hereunder are assigned, or prepaid or repaid (otherwise
than on the ratable prepayment or repayment of the Loans among the Banks) for
any reason whatsoever, such Reference Bank shall thereupon cease to be a
Reference Bank and, if as a result of the foregoing, there shall be only one
Reference Bank remaining, then the Agent (after consultation with the Company
and the Banks) shall, as soon as practicable thereafter, by notice to the
Company and the Banks, designate another Bank that is willing to act as a
Reference Bank so that there shall at all times be at least two Reference
Banks. In acting to so designate another Bank to serve as a Reference Bank,
the Agent will use its best efforts to ensure that one Reference Bank will, at
all times, be a Bank that has its headquarters office located outside the
United States.
(d) If any of the Reference Banks shall be unable or shall
otherwise fail to provide notice of a rate to the Agent upon its request with
respect to a Eurodollar Loan, the Eurodollar Rate shall be determined on the
basis of rates provided in notices of the remaining Reference Banks.
2.11 Inability to Determine Eurodollar Rate. In the event that
(a) the Agent determines (which determination shall be conclusive and binding
upon the Company) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate in respect of any Eurodollar Loans, or (b) the Required Banks
determine (which determination shall be conclusive and binding upon the
Company) and shall notify the Agent that the rates of interest referred to in
the definition of "Eurodollar Rate" as the basis upon which the rate of
interest for Eurodollar Loans is to be determined do not adequately cover the
cost to the Banks of making or maintaining Eurodollar Loans, in each case with
respect to any proposed Loan that the Company has requested to be made as a
Eurodollar Loan, the Agent shall forthwith give facsimile transmission or
other written notice of such determination to the Company and the Banks at
least one Business Day prior to the requested Borrowing Date for such
Eurodollar Loan. If such notice is given, any requested borrowing of a
Eurodollar Loan shall be made as a Base Rate Loan. Until such notice has been
withdrawn by the Agent, no further Eurodollar Loans shall be made.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing by the
Company from the Banks and any reduction of the amount of the Commitments of
the Banks hereunder (except for the reduction or termination of a particular
Bank's Commitment pursuant to subsection 2.16) shall be made pro rata
according to the amounts of the then existing Commitments. Each payment
(including each prepayment) by the Company on account of principal and
interest (except for payments to a particular Bank pursuant to subsection
2.13, 2.15, or 2.16), shall be made on a pro rata basis according to the
amounts of the then outstanding Loans of the Banks hereunder. All payments
(including prepayments) by the Company shall be made without setoff or
counterclaim to the Agent for the account of the Banks at the office of the
Agent referred to in subsection 9.2 in Dollars and in immediately available
funds. The Agent shall promptly distribute such payments to each Bank entitled
to receive a portion thereof by causing such Bank's portion of such payment to
be deposited in such Bank's Clearing Account. If any payment hereunder (other
than a payment in respect of a Eurodollar Loan) becomes due and payable on a
day other than a Business Day, the maturity thereof shall be
<PAGE>
16
extended to the next succeeding Business Day. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another calendar
month in which event such payment shall be made on the immediately preceding
Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
(b) Unless the Agent shall have received notice from the
Company prior to the date on which any payment is due to the Banks hereunder
that the Company will not make such payment in full, the Agent may assume that
the Company has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due to such Bank. If
and to the extent the Company shall not have so made such payment in full to
the Agent, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from and
including the date such amount is distributed to such Bank to but excluding
the date such Bank repays such amount to the Agent at the Effective Federal
Funds Rate for each such day. Nothing contained in this subsection 2.12(b)
shall relieve the Company from its obligations to make payments on all amounts
due hereunder in accordance with the terms hereof.
2.13 Increased Costs. (a) In the event that any law,
regulation, treaty or directive or any change therein or in the interpretation
or application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority enacted or made subsequent to the date hereof:
(i) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Bank; or
(ii) does or shall impose on such Bank any other
condition;
and the result of any of the foregoing is to increase the cost to such Bank of
making, or maintaining advances or extensions of credit or to reduce any
amounts receivable hereunder (such increase in cost or reduction in amounts
receivable, "Increased Costs") then, in any such case, the Company shall
promptly pay to the Agent for the account of such Bank, upon the written
demand of such Bank to the Company (with a copy to the Agent), so long as such
Increased Costs are not otherwise included in the amounts required to be paid
to such Bank pursuant to subsection 2.13(b), 2.15, or 2.16, any additional
amounts necessary to compensate such Bank for such Increased Costs which such
Bank deems to be material as determined by such Bank with respect to its
Eurodollar Loans. If a Bank becomes entitled to claim any additional amounts
pursuant to this subsection 2.13(a), it shall promptly notify the Company,
through the Agent, of the event by reason of which it has become so entitled.
A certificate as to any additional amounts payable pursuant to the foregoing
sentence submitted by a Bank, through the Agent, to the Company shall be
conclusive in the absence of manifest error.
(b) Upon notice from any Affected Bank (as hereinafter
defined), the Company shall pay to the Agent for the account of such Affected
Bank an additional amount for each Eurodollar Loan of such Affected Bank,
payable on the last day of the Interest Period with respect thereto, equal to
<PAGE>
17
P x [[R / (1.00 - r)] - R] x [T / 360]
Where P = the principal amount of such Eurodollar Loan of such Bank;
R = the Eurodollar Rate (expressed as a decimal) for such Interest
Period;
T = the number of days in such Interest Period during which such Bank
was an "Affected Bank"; and
r = the aggregate of rates (expressed as a decimal) of reserve
requirements current on the date two Business Days prior to the
beginning of such Interest Period (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any
regulations of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto, as now and from
time to time hereafter in effect, dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Federal Reserve
Board) maintained by a member bank of the Federal Reserve System.
The term "Affected Bank" shall mean any Bank party to this
Agreement that is (i) organized under the laws of the United States or any
State thereof or (ii) a bank organized under laws other than those of the
United States of America or a State thereof that is funding its Eurodollar
Loans through a branch or agency located in the United States of America. Each
Bank agrees to notify the Agent (A) by appropriate notification on its
Addendum in the case of each original Bank party hereto and (B) in the case of
each New Bank, and each Assignee (as defined in the Chrysler Agreement) that
is not already a Bank, upon its becoming a party hereto, whether or not it is
an Affected Bank, and of any subsequent change of status, disclosing the
effective date of such change.
2.14 Transfer of Eurodollar Loans. Upon the occurrence of any
of the events specified in subsection 2.13(a), each Bank whose Eurodollar
Loans are affected by any such event agrees that it will transfer its
Eurodollar Loans affected by any such event to another branch office (or, if
such Bank so elects, to an affiliate) of such Bank, provided that such
transfer shall be made only if such Bank shall have determined in good faith
(which determination shall, absent manifest error, be final, conclusive and
binding upon all parties) that, (a) on the basis of existing circumstances,
such transfer will avoid such events and will not result in any additional
costs, liabilities or expenses to such Bank or to the Company and (b) such
transfer is otherwise consistent with the interests of such Bank.
2.15 Indemnity. The Company agrees to indemnify each Bank and
to hold such Bank harmless from all losses or expenses (including, but not
limited to, any such loss or expense arising from interest or fees payable by
such Bank to lenders of funds obtained by it in order to maintain its
Eurodollar Loans hereunder, but excluding loss of the Applicable Margin) which
such Bank may sustain or incur as a consequence of (a) failure by the Company
in making any payment when due (whether by acceleration or otherwise) of the
principal amount of or interest on the Eurodollar Loans of such Bank, (b)
failure by the Company in making a borrowing of Eurodollar Loans, or a
conversion into or continuation of Eurodollar Loans, after the Company has
given a notice requesting or accepting the same in accordance with the
provisions of this Agreement, (c) failure by the Company in making any
prepayment after the Company has given a notice in accordance with subsection
2.5 or (d) a prepayment of a Eurodollar Loan on a day that is not the last day
of the Interest Period with respect thereto. Such indemnification may include
an amount equal to the excess, if any, of (i) the amount of interest which
would have accrued on the amount so prepaid, or not so borrowed, converted or
<PAGE>
18
continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of the relevant Interest Period
(or proposed Interest Period), in each case at the applicable rate of interest
for such Loans provided for herein (excluding, however, the Applicable Margin)
over (ii) the amount of interest (as reasonably determined by such Bank) which
would have accrued to such Bank on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. The agreements in this subsection 2.15 shall survive the payment of
the Loans and all other amounts payable hereunder.
2.16 Taxes. (a) In the event that the adoption of any law,
regulation, treaty or directive or any change therein or in the interpretation
or application thereof, in each case after the date hereof, shall require any
Taxes (as hereinafter defined) to be withheld or deducted from any amount
payable to any Bank under this Agreement, upon notice by such Bank to the
Company (with a copy to the Agent) to the effect that (i) as a result of the
adoption of such law, rule, regulation, treaty or directive or a change
therein or in the interpretation thereof, Taxes are being withheld or deducted
from amounts payable to such Bank under this Agreement and (ii) such Bank has
taken all action required to be taken by it to avoid the imposition of such
Taxes pursuant to paragraph (c) of this subsection 2.16 prior to demanding
indemnification under this paragraph (a), the Company will pay to the Agent
for the account of such Bank additional amounts so that such additional
amounts, together with amounts otherwise payable under this Agreement, will
yield to such Bank, after deduction from such increased amount of all Taxes
required to be withheld or deducted therefrom, the amount stated to be payable
under this Agreement. The term "Taxes" shall mean all net income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, imposed, levied, collected, withheld or assessed by any country
(or by any political subdivision or taxing authority thereof or therein),
excluding, with respect to any Bank, net income and franchise taxes imposed
with respect to net income of any country (or any political subdivision or
taxing authority thereof or therein) where such Bank is organized or, in
respect of such Bank's Eurodollar Loans, by the country (or any political
subdivision or tax authority thereof or therein) where such Bank's Eurodollar
Loans are booked and, in respect of such Bank's Base Rate Loans, by the
country (or any political subdivision or tax authority thereof or therein)
where such Bank's Base Rate Loans are booked. If the Company fails to pay any
Taxes when due following notification by any Bank as provided above, the
Company shall indemnify such Bank for any incremental taxes, interest or
penalties that may become payable by any Bank as a result of any such failure
by the Company to make such payment. The Company may, upon payment by the
Company to any Bank claiming indemnification under this paragraph (a) of any
amount payable by the Company to such Bank, elect by not less than four
Business Days' prior written notice to such Bank to terminate the Commitment
of such Bank and prepay the Loans of such Bank outstanding hereunder on the
next day upon which a prepayment may be made pursuant to subsection 2.5.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to the
Company and the Agent (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or any successor applicable form, as the
case may be, and (ii) an Internal Revenue Service Form W-8 or W-9 or any
successor form. Each such Bank also agrees to deliver to the Company and the
Agent two further copies of the said Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms or other manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Company, and such extensions or renewals
thereof as may reasonably be requested by the Company or the Agent, unless in
any such case an event (including, without limitation, any change in treaty,
law or regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or which
would prevent such Bank from duly completing and delivering any such form with
respect to it and such Bank so advises the Company
<PAGE>
19
and the Agent. Such Bank shall certify (i) in the case of Form 1001 or 4224,
that it is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes and (ii) in the case
of a Form W-8 or W-9, that it is entitled to an exemption from United States
backup withholding tax.
(c) No Bank may request indemnification for any Taxes from the
Company under paragraph (a) of this subsection 2.16 to the extent that such
Taxes would have been avoided or reduced by such Bank's transfer of its Loans
affected by such event to another office of such Bank (or to an affiliate of
such Bank), by such Bank's properly claiming the benefit of any exemption from
or reduction of such Taxes (whether provided by statute, treaty or otherwise)
including, without limitation, by delivering the forms required by paragraph
(b) of this subsection 2.16, or by such Bank's taking any other action which
in its judgment is reasonable to avoid or reduce such Taxes, provided that
such Bank shall not be required to (i) take any action which in the reasonable
judgment of such Bank could directly or indirectly result in any increased
cost or expense or in any loss of opportunity to such Bank unless the Company
shall have provided to such Bank indemnity or reimbursement therefor in form
and substance reasonably satisfactory to such Bank or (ii) claim or apply any
tax credit against such Taxes.
(d) Within 30 days after the payment by the Company of any
Taxes withheld or deducted from any amount payable to any Bank under this
Agreement, and irrespective of whether such Bank is entitled to demand
indemnification in respect thereof under paragraph (a) above, the Company will
furnish to such Bank (with a copy to the Agent), the original or a certified
copy of a receipt evidencing payment thereof.
2.17 Transferred Commitment. (a) The Company and each Bank
agree that Chrysler may by giving four days' notice to the Agent, each Bank
and the Company (which notice shall, upon receipt by the Agent supersede and
cancel all prior notices hereunder), consent to the transfer to and borrowing
by the Company hereunder of such portion of the Available Company/CFC
Commitments (as such term is defined in the Chrysler Agreement) as may be
specified in such notice (as to each Bank, its "Transferred Commitment";
collectively for all the Banks, the "Transferred Commitments"). As of the
Effective Date, the Transferred Commitments shall be zero, unless Chrysler
shall have delivered a notice pursuant to the foregoing sentence at least four
days prior to the Effective Date. Each notice given pursuant to this
subsection shall indicate the total Transferred Commitments and as to each
Bank, its pro rata Transferred Commitment.
(b) The Company also agrees that Chrysler may, by giving thirty
days' written notice to the Agent, each Bank and the Company, withdraw any
consent to the transfer to and borrowing by the Company given in accordance
with subsection 2.17(a) in respect of any portion of the Transferred
Commitments not utilized by the Company as of the date of such notice.
2.18 Use of Proceeds. The proceeds of the Loans hereunder shall
be used by the Company for general corporate purposes.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and
to make the Loans herein provided for, the Company hereby represents and
warrants to each Bank that:
3.1 Financial Condition. The consolidated balance sheet of the
Company and its Subsidiaries as at December 31, 1994 and the related
consolidated statements of net earnings and cash
<PAGE>
20
flows for the fiscal year ended on such date, certified by Deloitte & Touche,
copies of which have been delivered to each Bank, present fairly the
consolidated financial position of the Company and its Subsidiaries as at such
date, and the consolidated results of their operations and cash flows for the
fiscal year then ended. The unaudited consolidated balance sheet of the
Company and its Subsidiaries as at March 31, 1995 and the related consolidated
statements of net earnings and cash flows for the three-month period ended on
such date, certified by a Responsible Officer, copies of which have been
delivered to each Bank, present fairly the consolidated financial condition of
the Company and its Subsidiaries as at such date, and the consolidated results
of their operations for the three-month period then ended (subject to normal
year-end audit adjustments). Such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP. As at
March 31, 1995, neither the Company nor any of its Subsidiaries had any asset,
liability, contingent obligation, liability for taxes, long-term lease or
unusual forward or long-term commitment material to the financial condition of
the Company and its Subsidiaries taken as a whole, which was not reflected in
the foregoing statements or in the notes thereto.
3.2 No Change. Between December 31, 1994 and the Effective
Date, there has been no material adverse change in the business, operations or
financial condition of the Company and its Subsidiaries taken as a whole.
3.3 Corporate Existence. The Company (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Michigan, and (b) is duly qualified as a foreign corporation to do
business and is in good standing in each of the jurisdictions in which the
character of the properties owned or held under lease by it or the nature of
business transacted by it makes such qualification necessary, except in the
case of this clause (b) to the extent that the failure to be so qualified or
in good standing would not have a material adverse effect on the business,
operations or financial condition of the Company and its Subsidiaries taken as
a whole.
3.4 Corporate Authorization; No Violation. The execution,
delivery and performance by the Company of this Agreement are within the
corporate powers of the Company, have been duly authorized by all necessary
corporate action, and do not contravene any Requirement of Law or Contractual
Obligation of the Company, except to the extent that such contravention would
not have a material adverse effect on the business, operations or financial
condition of the Company and its Subsidiaries taken as a whole or on the
ability of the Company to fulfill its obligations under this Agreement or on
the rights and remedies of the Agent and the Banks hereunder.
3.5 Government Authorization. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority
is required to be obtained or made by the Company for the due execution,
delivery and performance by the Company of this Agreement.
3.6 Federal Regulations. Neither the Company nor any of its
Subsidiaries is principally engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U, T, G or X issued by the Federal Reserve Board), and no proceeds
of any borrowing hereunder will be used to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying any
margin stock.
3.7 Enforceable Obligations. This Agreement has been duly
executed and delivered on behalf of the Company, and this Agreement
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
principles of equity, whether considered in a proceeding in equity or at law.
<PAGE>
21
3.8 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Company, threatened by or against the Company or
any of its Subsidiaries or against any of its or their respective properties
or revenues, in which there is a reasonable likelihood of an adverse
determination (a) with respect to this Agreement or any of the transactions
contemplated hereby, if such adverse determination would have a material
adverse effect on the ability of the Company to fulfill its obligations under
this Agreement or on the rights and remedies of the Agent and the Banks
hereunder or (b) which would, if adversely determined, have a material adverse
effect on the business, operations, property or financial condition of the
Company and its Subsidiaries taken as a whole.
3.9 Taxes. Each of the Company and its Subsidiaries has filed
or caused to be filed all material tax returns which to the knowledge of the
Company are required to be filed, and has paid all material taxes shown to be
due and payable on said returns or on any assessments made against it or any
of its property and all other taxes, fees and other charges imposed on it or
any of its property by any Governmental Authority (other than those the amount
or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP, if
any, have been provided on the books of the Company or its Subsidiaries, as
the case may be).
3.10 ERISA. No Prohibited Transaction or Accumulated Funding
Deficiency (other than those that have been waived by the Internal Revenue
Service) has occurred since July 1, 1974 with respect to any Plan and no
Reportable Event has occurred since July 1, 1974 with respect to any Plan
which could in either case subject the Company or any of its Subsidiaries to
any tax, penalty or other liabilities in the aggregate material in relation to
the business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole. The projected benefit
obligations with respect to all benefits, both vested and nonvested, under all
Single Employer Plans (based on the most recently available actuarial
information and computed in accordance with Statement of Accounting Standards
No. 87) maintained by the Company or a Commonly Controlled Entity did not
exceed, at December 31, 1994, the fair value of the assets of such Plans.
3.11 Investment Company Act; Other Regulations. The Company is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended. The Company is not subject to regulation under any Federal or state
statute or regulation which limits its ability to incur Indebtedness.
3.12 Existing Financial Covenants. Schedule II hereto sets
forth a list of all Material Indebtedness of the Company or any Significant
Subsidiary the documentation with respect to which includes a financial
covenant which is more onerous than, or materially different from, the
financial covenant contained in subsection 6.1, together with a complete and
correct transcription of the text of each such financial covenant.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The effectiveness of this
Agreement is subject to the satisfaction of the following conditions
precedent:
(a) Execution of Agreement and Addenda. (i) This Agreement
shall have been executed and delivered by a duly authorized officer of
each of the Company and the Agent and (ii) the Agent shall have
received an executed Addendum (or a copy thereof by facsimile
transmission) from each Person listed on Schedule I.
<PAGE>
22
(b) Closing Certificate. The Agent shall have received a
certificate of the Company, dated the Effective Date, substantially in
the form of Exhibit D, with appropriate insertions, satisfactory in
form and substance to the Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Company,
and attaching the documents referred to in subsection 4.1(c) and (d).
(c) Corporate Proceedings of the Company. The Agent shall have
received a copy of the resolutions, in form and substance satisfactory
to the Agent, of the Board of Directors of the Company (or a duly
authorized committee thereof) authorizing (i) the execution, delivery
and performance of this Agreement and (ii) the borrowings contemplated
hereunder.
(d) Corporate Documents. The Agent shall have received true and
complete copies of the certificate of incorporation and by-laws of the
Company.
(e) Legal Opinions. The Agent shall have received the following
executed legal opinions, with a copy for each Bank:
(i) the executed legal opinion of Simpson Thacher &
Bartlett, counsel to the Agent, substantially in the form of
Exhibit A-1; and
(ii) the executed legal opinion of Allan L. Ronquillo,
Esq., General Counsel of the Company, substantially in the form
of Exhibit A-2.
The Agent shall notify the Banks of the Effective Date promptly after the
occurrence thereof.
4.2 Conditions to All Loans. The obligation of each Bank to
make any Loan on or after the Effective Date to be made by it hereunder is
subject to the satisfaction of the conditions precedent described in clauses
(a) and (b) below:
(a) Representations and Warranties. The representations and
warranties made by the Company herein shall be correct in all material
respects on and as of the Borrowing Date for such Loan as if made on
and as of such date, except for any such representations or warranties
which relate solely to an earlier date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such Borrowing Date
or after giving effect to the Loans to be made on such Borrowing Date.
Each borrowing by the Company hereunder shall constitute a
representation and warranty by the Company as of the date of each such
borrowing that the conditions in this subsection 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby covenants and agrees that so long as the
Commitments remain in effect, any Loan made hereunder remains outstanding and
unpaid or any other amount is owing to any Bank or the Agent hereunder:
<PAGE>
23
5.1 Financial Statements, etc. (a) The Company will furnish to
each Bank:
(i) as soon as available and in any event within 60 days
after the end of the first, second and third quarterly accounting
periods in each fiscal year of the Company, copies of financial
statements of the Company and its Subsidiaries consisting of, at a
minimum, balance sheets of the Company and its Subsidiaries on a
consolidated basis as of the end of such quarterly accounting period,
and related statements of net earnings and cash flows for the portion
of such fiscal year ended with the last day of such quarterly
accounting period, all in reasonable detail and prepared and certified
(subject to year-end audit adjustments) by a Responsible Officer
(which certification may be included in the certificate referred to in
subsection 5.1(a)(iii)) and stating in comparative form the respective
figures for the corresponding date and period in the previous fiscal
year;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Company, copies of
financial statements of the Company and its Subsidiaries consisting
of, at a minimum, balance sheets of the Company and its Subsidiaries
on a consolidated basis as of the end of such fiscal year, and related
statements of net earnings and cash flows for such fiscal year, all in
reasonable detail and certified by independent public accountants of
nationally recognized standing selected by the Company and stating in
comparative form the respective figures as of the end of and for the
previous fiscal year;
(iii) concurrently with the financial statements for
each quarterly accounting period and for each fiscal year of the
Company furnished pursuant to paragraphs (a)(i) and (a)(ii) of this
subsection 5.1, a certificate of a Responsible Officer stating that,
based on an examination which in the opinion of the signer is
sufficient to enable him to make an informed statement, the Company
and its Subsidiaries have performed and observed all of, and neither
the Company nor any of its Subsidiaries is in default in the
performance or observance of any of, the terms, covenants, agreements
and conditions of this Agreement or, if the Company or any of its
Subsidiaries shall be in default, specifying all such defaults and the
nature thereof, of which the signer of such certificate may have
knowledge; and
(iv) such other information relating to the affairs of
the Company and its Subsidiaries as any Bank through the Agent may
from time to time reasonably request.
(b) (i) Upon written request by any Bank through the Agent, the
Company will furnish to such Bank copies of all such reports of the type a
publicly held corporation would generally make available to its stockholders
as the Company shall make available to its parent company and (ii) upon
written request of the Agent, the Company will furnish to the Agent all
regular and periodic reports which the Company or any Subsidiary may be
required to file with the Securities and Exchange Commission or any similar or
corresponding government department, commission, board, bureau or agency,
domestic or foreign, or with any securities exchange.
5.2 Maintenance of Existence. The Company will, and will cause
each Subsidiary to, preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except for rights, privileges and franchises the loss of which would
not in the aggregate in the reasonable business judgment of the Company have a
material adverse effect on the business, operations, property or financial or
other condition of the Company and its Subsidiaries taken as a whole, and
except as otherwise permitted by subsection 6.6.
<PAGE>
24
5.3 Notices. The Company will promptly give notice to the Agent
(which shall notify the Banks) of (a) the occurrence of any Default or Event
of Default (accompanied by a certificate of a Responsible Officer specifying
the nature of such event, the period of existence thereof, and the action that
the Company proposes to take with respect thereto) and (b) the execution and
delivery of any documentation with respect to any Material Indebtedness of the
Company or any Significant Subsidiary if such documentation includes a
financial covenant which is more onerous than, or materially different from,
the financial covenant contained in subsection 6.1, accompanied by a complete
and correct transcription of the text of such financial covenant. The delivery
of any such notice shall be deemed to automatically amend Schedule II to
reflect the existence of such financial covenant and the text thereof.
SECTION 6. NEGATIVE COVENANTS
The Company hereby covenants and agrees that so long as the
Commitments remain in effect, any Loan made hereunder remains outstanding and
unpaid or any other amount is owing to any Bank or the Agent hereunder:
6.1 Debt to Equity Ratio. The Company will not permit the ratio
of Debt on the last day of any fiscal quarter of the Company to Equity on such
day to be greater than 11.0 to 1.0.
6.2 Limitation on Transactions with Affiliates. The Company
will not, and will not permit any Subsidiary to, engage in any transaction
with an Affiliate (other than the Company and its Subsidiaries) on terms
substantially less favorable to the Company or such Subsidiary than would be
obtainable at the time in comparable transactions of the Company or such
Subsidiary with Persons not Affiliates. As used in this subsection 6.2, after
the occurrence of a Change of Control, the term "Affiliate" shall be deemed to
include any CFC Affiliate.
6.3 Limitation on Fundamental Change. The Company will not (a)
merge or consolidate with any other Person (unless (i) the Company shall be
the continuing corporation and (ii) immediately before and immediately after
giving effect to such merger or consolidation, no Default or Event of Default
shall have occurred and be continuing) or (b) sell or convey all or
substantially all of its assets to any Person.
6.4 Limitation on Liens. (a) The Company will not, and will not
permit any Finance Subsidiary to, create, assume or incur, or suffer to be
created, assumed or incurred or to exist, any Lien in respect of any property
of any character of the Company or such Finance Subsidiary, whether heretofore
or hereafter acquired; excluding, however, from the operation of this
covenant:
(i) any deposit of assets of the Company or any of its Finance
Subsidiaries with any surety company or clerk of any court, or in
escrow, as collateral in connection with, or in lieu of, any bond on
appeal by the Company or any of its Finance Subsidiaries, from any
judgment or decree, or in connection with other proceedings or actions
at law or in equity by or against the Company or any of its Finance
Subsidiaries;
(ii) Liens created by any Finance Subsidiary in favor of the
Company or a wholly-owned Subsidiary securing indebtedness of such
Finance Subsidiary to the Company or a wholly-owned Subsidiary (which
Liens cannot be transferred except to the Company or to another
wholly-owned Subsidiary);
<PAGE>
25
(iii) any deposits to secure public or statutory obligations of
the Company or any of its Finance Subsidiaries, other than any such
deposit made as a result of or in connection with the occurrence of
any of the events described in clause (i), (ii), (iii) or (iv) of
Section 7(g);
(iv) any purchase money Liens in respect of fixed assets or
other physical or real properties heretofore or hereafter acquired by
the Company or any of its Finance Subsidiaries, or any Liens existing
in respect of such property at the time of acquisition thereof;
provided, however, that no such Lien shall extend to or cover any
other property of the Company or such Finance Subsidiary, as the case
may be;
(v) any Liens which are (A) in respect of fixed assets or other
physical properties of a corporation which is not a Finance Subsidiary
as of the date hereof, and (B) in existence at the time such
corporation becomes a Finance Subsidiary;
(vi) the extension, renewal or replacement of any Lien
permitted by paragraphs (i) through (v) above in respect of the same
property theretofore subject thereto or the extension, renewal or
replacement (without increase of principal amount) of the indebtedness
secured thereby;
(vii) Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Company or such
Finance Subsidiary, as the case may be, in accordance with GAAP;
(viii) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business (A) which are not overdue for a period of more than
60 days or (B) which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or such Finance Subsidiary, as
the case may be, in accordance with GAAP;
(ix) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred in the
ordinary course of business which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or interfere with the
ordinary conduct of the business of the Company or its Finance
Subsidiaries;
(x) any attachment or judgment lien, unless the judgment it
secures shall not, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not
have been discharged within 30 days after the expiration of any such
stay;
(xi) Liens granted on assets in connection with leveraged
leases and project financings entered into in the ordinary course of
the Finance Business;
(xii) Liens granted in connection with the cash
collateralization of bankers' acceptances pursuant to the Long Term
Revolving Credit Agreement or the Short Term Revolving Credit
Agreement;
(xiii) Liens on receivables payable in foreign currencies
(other than Canadian dollars) to secure borrowings in foreign
countries (other than Canada); and
<PAGE>
26
(xiv) Liens to secure Indebtedness and other obligations of the
Company or any of its Finance Subsidiaries not otherwise permitted by
this subsection 6.4, but only to the extent that the aggregate amount
of Indebtedness and other obligations secured thereby does not at any
time exceed $100,000,000 (or the equivalent thereof in any other
currency).
(b) The Company will not permit any Domestic Subsidiary that is
not a Finance Subsidiary to create, assume or incur, or suffer to be created,
assumed or incurred or to exist, any Lien in respect of any property of any
character of such Domestic Subsidiary, whether heretofore or hereafter
acquired, excluding, however, from the operation of this covenant:
(i) Liens on property of such Domestic Subsidiary that would
be permitted under subsection 6.4(a) if such Domestic Subsidiary were
a Finance Subsidiary;
(ii) Liens on property of such Domestic Subsidiary that are
incurred in the ordinary course of the Finance Business or the Real
Estate Business of such Domestic Subsidiary; and
(iii) Liens on any property of such Domestic Subsidiary if such
Domestic Subsidiary is a "single purpose" entity formed for the
purpose of holding title to such property and engages in no activities
other than those related to holding title to such property.
6.5 Additional Covenants. At any time after the occurrence of a
Change of Control:
(a) Limitation on Dividends, Investments, etc. The
Company shall not (i) declare or pay any dividend (other than
dividends payable solely in common stock of the Company) on, or make
any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement
or other acquisition of, any shares of any class of Capital Stock of
the Company, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of the Company or any
Subsidiary or (ii) make, or permit any Subsidiary to make, any
investment, loan, advance, capital contribution or extension of credit
(including by way of guaranty in favor of third party creditors),
whether in cash or property or otherwise, in or to or for the benefit
of any CFC Affiliate, except that (x) so long as no Event of Default
has occurred and is continuing (or would occur after giving effect
thereto), the Company may declare and pay any scheduled dividend on,
and make redemptions of, preferred stock issued by the Company to any
Person (other than a CFC Affiliate) to the extent permitted by the
terms thereof and (y) the Company and its Subsidiaries may make
investments, loans, advances and extensions of credit in or to or for
the benefit of any CFC Affiliate in the ordinary course of its Finance
Business consistent with historical practices (in each case determined
as of the date of such Change of Control) and in accordance with
subsection 6.2.
(b) Minimum Equity. The Company shall not permit Equity
(determined without giving effect to any redemption of preferred stock
of the Company made pursuant to subsection 6.5(a) after the date of
such Change of Control) to be less than an amount equal to Equity as
of the day immediately preceding the occurrence of such Change of
Control minus $250,000,000.
(c) Limitation on Amendments to Intercompany
Agreements; CFC Affiliate Transactions. The Company shall not, and
shall not permit any Subsidiary to, (i) amend or modify, or agree to
amend or modify, any of the provisions of any Intercompany Agreement
<PAGE>
27
in a manner materially adverse to the interests of either (x) the
Company and its Subsidiaries taken as a whole or (y) the Banks, or
(ii) enter into, or agree to enter into, any Intercompany Agreement
which is materially adverse to the interests of either (x) the Company
and its Subsidiaries taken as a whole or (y) the Banks. As used in
this subsection 6.5(c), "Intercompany Agreement" means any agreement
between the Company or any Subsidiary and any CFC Affiliate, any
instrument issued by the Company or any Subsidiary to any CFC
Affiliate and any instrument issued by any CFC Affiliate to the
Company or any Subsidiary.
(d) Limitation on Lines of Business. The Company shall
not, and shall not permit any Subsidiary to, engage in any business
other than the Finance Business, the Finance-Related Insurance Business
and the other businesses in which the Company and its Subsidiaries are
engaged as of the date of such Change of Control, and other than
businesses in which the Company or any of its Subsidiaries may be
involved in connection with or related to any workout, liquidation,
foreclosure or other realization on or disposition of assets in which
it has a security interest, or any other exercise of rights or
remedies pursuant to a workout in connection with any financing
(whether equity or debt) provided by the Company or any of its
Subsidiaries to any Person.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) the Company shall fail to pay any principal of any Loan
made hereunder when due in accordance with the terms hereof; or to pay
any interest on any Loan made hereunder or any other amount payable
hereunder within five Business Days after any such interest or other
amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made by the Company herein,
or deemed made by the Company pursuant to Section 3 or 4, or contained
in any certificate, document or financial or other statement furnished
at any time under or in connection with this Agreement shall prove to
have been incorrect in any material respect on or as of the date made
or deemed made; or
(c) the Company shall default in the observance or performance
of any agreement contained in subsection 6.1, 6.3 or 6.5; or
(d) the Company shall default in the observance or performance
of any other agreement, covenant or term contained in this Agreement
(including any failure to make any payment required hereunder other
than as described in paragraph (a) above), and such default shall
continue unremedied for a period of 30 days after receipt by the
Company of notice of such default from the Agent; or
(e) the Company or any Significant Subsidiary shall default in
any payment of $25,000,000 (or the equivalent thereof in any other
currency) or more of principal of or interest on any Indebtedness or
in the payment of $25,000,000 (or the equivalent thereof in any other
currency) or more on account of any guarantee in respect of
Indebtedness, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness or guarantee was
created; or
<PAGE>
28
(f) (i) the Company or any of its Significant Subsidiaries
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of
its assets, or the Company or any of its Significant Subsidiaries
shall make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against the Company or any of its
Significant Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Company or any of its
Significant Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Company or any of
its Significant Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii) or (iii) above; or (v) the
Company or any of its Significant Subsidiaries shall admit in writing
its inability to pay its debts generally as they become due; or
(g) (i) any Person shall engage in any Prohibited Transaction
involving any Plan, (ii) any Accumulated Funding Deficiency, whether
or not waived, shall exist with respect to any Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which
Reportable Event or institution of proceedings is, in the reasonable
opinion of the Required Banks, likely to result in the termination of
such Plan for purposes of Title IV of ERISA, and, in the case of a
Reportable Event, the continuance of such Reportable Event unremedied
for ten days after notice of such Reportable Event pursuant to Section
4043(a), (c) or (d) of ERISA is given or the continuance of such
proceedings for ten days after commencement thereof, as the case may
be, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, or (v) any other event or condition shall occur or
exist with respect to a Single Employer Plan; and in each case in
clauses (i) through (v) above, the Agent shall have notified the
Company that, in the opinion of the Required Banks, such event or
condition, together with all other such events or conditions, if any,
could reasonably be expected to subject the Company or any of its
Subsidiaries to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or
financial or other condition of the Company and its Subsidiaries taken
as a whole; or
(h) one or more final judgments or decrees shall be entered
against the Company or any of its Significant Subsidiaries involving
in the aggregate a liability (not paid or fully covered by insurance)
of $100,000,000 (or the equivalent thereof in any other currency) or
more, shall have been unpaid for a period of 60 days and shall not
have been stayed; or
(i) Chrysler shall at any time fail to own at least 51% of the
issued and outstanding shares of the common stock of the Company; or
(j) the Company or any of its Significant Subsidiaries shall
default in the observance or performance of any financial covenant
contained in any instrument or agreement evidencing, securing or
relating to any of its Material Indebtedness, the effect of which
default
<PAGE>
29
is to cause, or to permit the holder or holders of such Material
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Material Indebtedness to become due prior to
its stated maturity;
then, and in any such event, (a) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to the
Company, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (b) if such
event is any other Event of Default, either or both of the following actions
may be taken: (i) with the consent of the Required Banks, the Agent may, or
upon the request of the Required Banks, the Agent shall, by notice to the
Company, declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Banks, the Agent may, or upon the request of the Required Banks, the
Agent shall, by notice of default to the Company, declare the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this
Agreement to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided above in this
Section 7, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 8. THE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chemical as the Agent of such Bank under this Agreement, and each
Bank hereby irrevocably authorizes Chemical as Agent for such Bank, to take
such action on its behalf under the provisions of this Agreement and to
exercise such powers and perform such duties as are expressly delegated to the
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent.
8.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. Without limiting the foregoing, the Agent may appoint CASC as its
agent to perform the functions of the Agent hereunder relating to the
advancing of funds to the Company and distribution of funds to the Banks and
to perform such other related functions of the Agent hereunder as are
reasonably incidental to such functions.
8.3 Exculpatory Provisions. Neither the Agent, nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates
(including, without limitation, CASC) shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct), or (b) responsible in any manner to any of
the Banks for any recitals, statements, representations or warranties made by
the Company or any officer thereof contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or
for any failure of the Company to perform its obligations hereunder. The Agent
shall not be under any obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records
of the Company.
<PAGE>
30
8.4 Reliance by Agent and CASC. The Agent and CASC shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile transmission, telex or teletype message, statement, order
or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Company), independent accountants and other experts selected by the
Agent. The Agent and CASC may deem and treat the Bank specified in the
Register with respect to any amount owing hereunder as the owner thereof for
all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Agent in accordance with subsection
9.7. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such advice or
concurrence of the Required Banks (or, if so specified in this Agreement, all
of the Banks) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall, in all cases, be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a request of the Required
Banks (or, if so specified in this Agreement, all of the Banks), and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks and all future holders of the obligations owing by
the Company hereunder.
8.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
unless the Agent has received notice from a Bank or the Company referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Agent receives
such a notice, the Agent shall give notice thereof to the Banks, and, if such
notice is received from a Bank, the Agent shall give notice thereof to the
Company and each other Bank. Subject to the proviso contained in the first
sentence of subsection 9.1, the Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Banks (or, if so specified in this Agreement, all of the Banks),
provided that, unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default or Event of Default as
it shall deem advisable in the best interests of the Banks.
8.6 Non-Reliance on Agent, Other Banks and CASC. Each Bank
expressly acknowledges that neither the Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates (including,
without limitation, CASC) has made any representations or warranties to it and
that no act by the Agent hereafter taken, including any review of the affairs
of the Company, shall be deemed to constitute any representation or warranty
by the Agent to any Bank. Each Bank represents to the Agent and CASC that it
has, independently and without reliance upon the Agent, any other Bank or
CASC, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
the Company and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Agent, any other Bank or CASC, and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit analysis, appraisals and decisions in taking or not
taking action under this Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly required to be furnished to the Banks by
the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Company
<PAGE>
31
which may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
8.7 Indemnification. The Banks agree to indemnify the Agent and
CASC (to the extent not reimbursed by the Company and without limiting the
obligation of the Company to do so), ratably according to the respective
amounts of their respective Commitment Percentages in effect on the date on
which indemnification is sought under this subsection 8.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated, ratably in accordance with such Commitment Percentages immediately
prior to such date) from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans made hereunder) be
imposed on, incurred by or asserted against the Agent or CASC in any way
relating to or arising out of this Agreement or any other documents
contemplated by or referred to herein or the transactions contemplated hereby
or any action taken or omitted by the Agent or CASC under or in connection
with any of the foregoing, provided that no Bank shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's or CASC's gross negligence or willful misconduct.
The agreements in this subsection 8.7 shall survive the payment of the Loans
made hereunder and all other amounts payable hereunder.
8.8 Agent in its Individual Capacity. The Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Company as though the Agent were not the Agent
hereunder. With respect to its Loans made or renewed by it, the Agent shall
have the same rights and powers under this Agreement as any Bank and may
exercise the same as though it were not the Agent and the terms "Bank" and
"Banks" shall include the Agent in its individual capacity.
8.9 Successor Agent. The Agent may resign as Agent, upon 10
days' notice to the Banks and the Company, and may be removed at any time with
or without cause by the Required Banks. If the Agent shall resign or be
removed as Agent under this Agreement, then either (a) the Required Banks
shall appoint from among the Banks a successor agent for the Banks, which
successor agent shall be approved by the Company, or (b) if a successor agent
shall not have been so appointed and approved within the ten-day period
following the Agent's notice to the Banks or its removal as Agent, the Agent
shall then, with the consent of the Company, appoint a successor agent who
shall serve as Agent until such time, if any, as the Required Banks appoint,
and the Company approves, a successor agent as provided in (a) above. Upon its
appointment pursuant to either clause (a) or (b) above, such successor agent
shall succeed to the rights, powers and duties of the Agent, and the term
"Agent" shall mean such successor agent effective upon its appointment, and
the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or
any of the parties to this Agreement or any holders of the obligations owing
by the Company hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. With the written consent of the
Required Banks, the Agent and the Company may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or changing in any manner the rights
of the Banks or of the Company hereunder, and with the consent of the Required
<PAGE>
32
Banks, the Agent on behalf of the Banks may execute and deliver to the Company
a written instrument waiving, on such terms and conditions as the Agent may
specify (with such consent) in such instrument, any of the requirements of
this Agreement or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (a) extend the maturity of any Loan, or reduce the rate or
extend the time of payment of interest thereon, or reduce the principal amount
thereof, or change the amount or terms of any Bank's Commitment, or amend,
modify or waive any provision of this subsection 9.1 or reduce the percentage
specified in the definition of Required Banks, or consent to the assignment or
transfer by the Company of any of its rights and obligations under this
Agreement or amend, modify or waive the provisions of subsection 9.8, in each
case without the prior written consent of each Bank directly affected thereby,
or (b) amend, modify or waive any provision of Section 8 without the prior
written consent of the Agent. Each Bank hereby consents to the inclusion in
this Agreement of each and every amendment, revision, addition, change, waiver
or other modification to Section 7, Section 8 and/or the definitions of
"Applicable Margin", "Base Rate", "Eurodollar Rate" and "Status" (including
each defined term referred to in the definition of "Status") of the Long Term
Revolving Credit Agreement made after the Effective Date (except to the extent
relating to any provision contained in such Sections on the Effective Date as
to which there is no comparable provision herein on the Effective Date) and
each and every such amendment, revision, addition, change, waiver or other
modification thereof is hereby incorporated, as in effect from time to time,
into this Agreement with the same effect as if fully set forth in Section 5,
Section 6 and/or the definitions of "Applicable Margin", "Base Rate",
"Eurodollar Rate" and "Status" (including each defined term referred to in the
definition of "Status") of this Agreement, as appropriate, provided that for
purposes of this Agreement if the Long Term Revolving Credit Agreement is
terminated such Sections 5 and 6 and such definitions of "Applicable Margin",
"Base Rate", "Eurodollar Rate" and "Status" shall remain in effect for
purposes of this Agreement in the form in which they shall be in effect on the
date of such termination; provided, further, that for purposes of this
Agreement if the Long Term Revolving Credit Agreement is amended so as to
remove the covenant set forth in Section 8.4 of the Long Term Revolving Credit
Agreement, subsection 6.4 hereof shall not be so amended, and if any provision
of Section 8.4 of the Long Term Revolving Credit Agreement is amended or
waived so as to grant to the financial institutions under the Long Term
Revolving Credit Agreement a Lien on any assets of the Company or its
Subsidiaries, the obligations of the Company hereunder shall be secured, and
the Company shall take such action and execute such security documents as the
Agent may reasonably request to further effect the security of such
obligations, equally and ratably with its obligations to the financial
institutions under the Long Term Revolving Credit Agreement. The Company will
advise the Agent promptly of any amendment to or termination of the Long Term
Revolving Credit Agreement. Any such waiver and any such amendment, supplement
or modification shall apply equally to each of the Banks and shall be binding
upon the Company, the Banks, the Agent and all future holders of the
obligations owing by the Company hereunder. In the case of any waiver, the
Company, the Banks and the Agent shall be restored to their former position
and rights hereunder and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right
consequent thereon. No provision of this subsection 9.1 shall limit the rights
of any party hereto pursuant to subsections 2.13, 2.14, 2.15, 2.16, 9.8 and
9.9.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing or by telecopy
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given or made when delivered by hand or when deposited in the mail, first
class or air postage prepaid, or, in the case of telecopied notice, when
telecopied, receipt acknowledged, addressed as follows in the case of the
Company and the Agent, and as set forth
<PAGE>
33
in its Addendum in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto and any
future holders of the obligations owing by the Company hereunder:
The Company: Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Vice President and Treasurer
Telecopy: 810-948-3801
The Agent: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Rosemary Bradley
Telecopy: 212-972-9854
With Copies
to: Chemical Bank Agency
Services
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Sandra Miklave
Telecopy: 212-622-0002
provided that any notice, request or demand to or upon the Agent pursuant to
subsection 2.2, 2.4, 2.17, or 8.5 shall not be effective until received.
9.3 Clearing Accounts. (a) Each Bank irrevocably authorizes the
Agent and CASC to cause such Bank's Clearing Account to be debited as
contemplated in subsection 2.2 and to cause to be created an overdraft in such
account if the balance in such Bank's Clearing Account on a particular
Borrowing Date is less than the amount of the Loan to be made by such Bank on
such day. In addition each Bank irrevocably authorizes the Agent and CASC to
cause such Bank's Clearing Account to be credited, as contemplated in
subsection 2.12(a), with its ratable share of payments received by the Agent
from the Company. The Clearing Account of each Bank shall be maintained at its
own expense and free of charge to the Agent, CASC and the Company.
(b) The Agent may at any time in its sole discretion, upon
notice to the Company and the Banks, discontinue the use of ACH procedures in
connection with Loans made pursuant hereto, and the Banks shall thereafter
fund each Loan required to be made by them hereunder by making available the
amount thereof to the Agent for the account of the Company at the office of
the Agent set forth in subsection 9.2 in funds immediately available to the
Agent.
9.4 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Bank, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or of the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
<PAGE>
34
9.5 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement.
9.6 Payment of Expenses. The Company agrees:
(a) to pay or reimburse the Agent for all reasonable
out-of-pocket costs and expenses incurred in connection with the
preparation and execution of, and any amendment, supplement or
modification to or waiver under, this Agreement and any other
documents prepared in connection herewith, and the consummation of the
transactions contemplated hereby and the administration of this
Agreement, including, without limitation, the reasonable fees and
disbursements of Simpson Thacher & Bartlett, special counsel to the
Agent and the Banks;
(b) to pay or reimburse each Bank and the Agent for all costs
and expenses (other than legal fees and disbursements) incurred in
connection with the enforcement or preservation of any rights under
this Agreement and any such other documents and the reasonable fees
and disbursements of one firm of special counsel to the Agent and the
Banks; and
(c) to (i) indemnify each Bank from and against liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (other than legal fees and
disbursements) of any kind whatsoever (and, with respect to any
proceeding or related proceedings, the reasonable fees and
disbursements of one firm of special counsel to the relevant Banks in
connection with such proceeding(s)) which may at any time (including,
without limitation, at any time following the payment of the Loans
made hereunder) be imposed on, incurred by or asserted against such
Bank in any way relating to or arising out of this Agreement or any
other documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by
such Bank under or in connection with any of the foregoing, provided
that the Company shall not be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from (x)
the ordinary course administration of this Agreement or such other
documents by any Bank or (y) any Bank's gross negligence or willful
misconduct or bad faith and (ii) pay or reimburse (x) each Bank for
any payments made by such Bank to the Agent or CASC pursuant to the
provisions of subsection 8.7 and (y) the Agent and CASC for any and
all liabilities, expenses or disbursements incurred by any of them
which pursuant to the provisions of subsection 8.7 are the subject of
indemnification payments from the Banks to the extent that the Agent
or CASC, for whatever reason, did not receive such indemnification
payments from any Bank or Banks.
The agreements in this subsection 9.6 shall survive the
repayment of the Loans made hereunder and all other amounts payable hereunder.
9.7 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Banks and the Agent, and their respective successors and assigns, except
that the Company may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants") participating interests
in any Loan owing to such Bank, any Commitment of such Bank or any other
interest of such Bank hereunder. In the event of any such sale by a Bank of a
participating interest to a Participant, such Bank's obligations under this
Agreement to the other parties to this Agreement
<PAGE>
35
shall remain unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any Loan made by it
for all purposes under this Agreement, and the Company and the Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement, provided, that the terms
of any participation agreement or certificate relating to any such
participation shall prohibit any subparticipations by such participant and
provided, further any such participation agreement or certificate shall permit
the Bank granting such participations the right to consent to waivers,
amendments or supplements to this Agreement without the consent of such
participant except in the case of (a) waivers of any Default or Event of
Default described in Section 7(a), and (b) any amendment or modification
extending the maturity of any Loan, or reducing the rate or extending the time
of payment of interest thereon, or reducing the principal amount thereof. The
Company agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Banks the
proceeds thereof as provided in subsection 9.9 as fully as if it were a Bank
hereunder. All amounts payable by the Company under Section 2 shall be
determined as if such Bank had not sold such participations.
(c) Any Bank may assign to any Bank or additional bank or
financial institution or any Federal Reserve Bank all or any part of its
rights and obligations under this Agreement on the terms and conditions set
forth in subsection 9.6(c), (d), (e) and (g) of the Chrysler Agreement, the
provisions of which (including the definitions of defined terms used therein)
are incorporated herein by reference as if set forth fully herein; provided,
however, that in no event shall any such assignment by any Bank to any
assignee (other than any pledge or assignment of Loans to a Federal Reserve
Bank) be permitted hereunder unless contemporaneously therewith such Bank
shall assign to such assignee a percentage interest in such Bank's rights and
obligations under the Chrysler Agreement and the promissory notes issued
thereunder that is equal to the percentage interest then being assigned
hereunder.
(d) The Company authorizes each Bank to disclose to any
Participant or Assignee (as defined in the Chrysler Agreement) (each, a
"Transferee") and any prospective Transferee any and all financial information
in such Bank's possession concerning the Company and its Affiliates which has
been delivered to such Bank by or on behalf of the Company pursuant to this
Agreement or which has been delivered to such Bank by or on behalf of the
Company in connection with such Bank's credit evaluation of the Company and
its affiliates prior to becoming a party to this Agreement.
(e) In order to facilitate any pledge or assignment to any
Federal Reserve Bank of any Loans made by any Bank hereunder, the Company
hereby agrees that, upon request of any Bank at any time and from time to time
after the Company has made its initial borrowing hereunder, the Company shall
provide to such Bank, at the Company's own expense, a note, substantially in
the form of Exhibit E, evidencing the Loans owing to such Bank.
(f) The Agent shall maintain at its address referred to in
subsection 9.2 a register (the "Register") for the recordation of the names
and addresses of the Banks, the Commitments of the Banks, and the principal
amount of each Type of Loan owing to each Bank from time to time. The entries
in the Register shall be conclusive, in the absence of clearly demonstrable
error, and the Company, the Agent and the Banks may treat each Person whose
name is recorded in the Register as the owner of the Loan recorded therein for
all purposes of this Agreement. The Register shall be available for inspection
by the Company or any Bank at any reasonable time and from time to time
<PAGE>
36
upon reasonable prior notice. The Agent shall give prompt written notice to
the Company of the making of any entry in the Register or any change in any
such entry.
9.8 Right of Set-off. Upon (a) the occurrence and during the
continuance of an Event of Default and (b) with the consent of the Required
Banks, each Bank is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Bank (including, without
limitation, its branches) to or for the credit or the account of the Company
against any and all of the obligations of the Company now or hereafter
existing under this Agreement, irrespective of whether or not such Bank shall
have made any demand under this Agreement and although such obligations may be
unmatured. Each Bank agrees promptly to notify the Company after any such
set-off and application made by such Bank, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Bank under this subsection are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Bank may have.
9.9 Adjustments. If any Bank (a "benefitted Bank") shall at any
time, except in connection with any termination or assignment of or by such
Bank pursuant to this Agreement, receive any payment of all or part of its
Loans made hereunder, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in clause (f) of Section 7, or
otherwise) in a greater proportion than any such payment to, or any collateral
received by, any other Bank, if any, in respect of such other Bank's Loans, or
interest thereon, such benefitted Bank shall purchase for cash from the other
Banks such portion of each such other Bank's Loans, or shall provide such
other Banks with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Bank to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Banks; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Bank, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. The Company agrees that each
Bank so purchasing a portion of another Bank's Loans may exercise all rights
of payment (including, without limitation, rights of set-off) with respect to
such portion as fully as if such Bank were the direct holder of such portion.
9.10 New Banks. During the term of this Agreement with the
consent of the Company and upon notification to the Agent, one or more
additional financial institutions may become a party to this Agreement by
executing a supplement hereto with the Company and the Agent, substantially in
the form of Exhibit B, whereupon such financial institution (herein called a
"New Bank") shall become a Bank for all purposes and to the same extent as if
originally a party hereto and shall be bound by and entitled to the benefits
of this Agreement, provided that any such New Bank has also become a New Bank
under the Chrysler Agreement pursuant to subsection 9.10 thereof. Effective as
of the date on which any such New Bank becomes a Bank pursuant to the
provisions of this subsection, the Agent, each Bank and the Company shall
receive a notice from Chrysler of each Bank's Commitment and the aggregate
Commitments pursuant to subsection 2.17 of the Chrysler Agreement. If on the
date upon which such New Bank becomes a Bank pursuant to the provisions of
this subsection 9.10, there is an unpaid principal amount of the Loans
outstanding hereunder, the Company shall borrow from such New Bank through the
Agent, in an amount determined by multiplying the amount of such New Bank's
Commitment by a fraction, the numerator of which shall be the then unpaid
principal amount of the Loans outstanding hereunder and the denominator of
which shall be the aggregate Commitments of the Banks other than the New Bank.
Notwithstanding anything herein to the contrary, if there are Eurodollar Loans
outstanding, a financial institution that becomes a New Bank will make
Eurodollar Loans to the Company (pro rata according to its
<PAGE>
37
Commitment Percentage) having Interest Periods corresponding to the then
unexpired portions of the respective Interest Periods of such Eurodollar Loans
and bearing interest at a rate equal to the respective interest rates then
applicable to such Eurodollar Loans. The Agent shall advise the Banks of each
addition of a New Bank hereunder, of the amount of its Commitment and of the
amount of any borrowing from it hereunder made simultaneously upon its
addition.
9.11 Increase in Commitments. During the term of this
Agreement, upon any Bank increasing its Commitment under the Chrysler
Agreement and Chrysler giving the notice required by subsection 2.17(c) of the
Chrysler Agreement, such Bank shall be deemed to have increased its Commitment
hereunder as set forth in such notice, whereupon such Bank shall be bound by
and entitled to the benefits of this Agreement with respect to the full amount
of its Commitment as so increased. Effective as of the date on which any such
Bank increases its Commitment pursuant to the provisions of this subsection
9.11, the Agent, each Bank and the Company shall receive a notice from
Chrysler of each Bank's Commitment and the aggregate Commitments pursuant to
subsection 2.17 of the Chrysler Agreement. If on the date upon which such Bank
increases its Commitment pursuant to this subsection 9.11 there is an unpaid
principal amount of the Loans hereunder, the Company shall borrow from such
Bank through the Agent, in an amount determined by multiplying the amount of
the increase in such Bank's Commitment by a fraction, the numerator of which
shall be the then unpaid principal amount of the Loans outstanding hereunder
and the denominator of which shall be the aggregate Commitments of the Banks
other than the amount of the additional Commitment of such Bank.
Notwithstanding anything herein to the contrary, if there are Eurodollar Loans
outstanding, a Bank that increases its Commitment pursuant to this subsection
9.11 will make Eurodollar Loans to the Company (pro rata according to the
amount of the increase in such Bank's Commitment) having Interest Periods
corresponding to the then unexpired portions of the respective Interest
Periods of such Eurodollar Loans and bearing interest at a rate equal to the
respective interest rates then applicable to such Eurodollar Loans. The Agent
shall advise the Banks of such increase in the Commitment of a Bank and of the
amount of any borrowing from it hereunder made simultaneously upon such
increase.
9.12 Tax Forms. If any Bank which becomes a party to this
Agreement on any day after the date hereof pursuant to subsection 9.7 or 9.10
is organized under the laws of any jurisdiction other than the United States
or any state thereof, such Bank shall on such day (i) represent to the
transferor Bank (if applicable), the Agent and the Company that under
applicable law and treaties no taxes will be required to be withheld by the
Agent, the Company or the transferor Bank (if applicable) with respect to any
payments to be made to such Bank in respect of the Loans hereunder, (ii)
furnish to the transferor Bank (if applicable), the Agent and the Company
either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein such Bank claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments hereunder) and
(iii) agree (for the benefit of the transferor Bank (if applicable), the Agent
and the Company) to provide the transferor Bank (if applicable), the Agent and
the Company a new Form 4224 or Form 1001 upon the expiration or obsolescence
of any previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and
completed by such Bank, and to comply from time to time with all applicable
U.S. laws and regulations with regard to such withholding tax exemption.
9.13 Counterparts. This Agreement may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Agent.
<PAGE>
38
9.14 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
9.15 Submission to Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding commenced by any party hereto relating to this Agreement,
or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State
of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts, and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company at its address set forth in subsection 9.2 or
at such other address of which the Agent shall have been notified with
copies addressed as set forth in subsection 9.2; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
9.16 Integration. This Agreement represents the agreement of
each party with respect to the subject matter hereof, and there are no
promises or representations by the Agent or any Bank relative to the subject
matter hereof not reflected herein.
9.17 Restatement. It is the intention of each of the parties
hereto that all indebtedness of the Company under the Fourth Amended and
Restated Commitment Transfer Agreement be continued hereunder, and that the
Fourth Amended and Restated Commitment Transfer Agreement be amended and
restated in its entirety to reflect such continuation.
<PAGE>
39
9.18 WAIVERS OF JURY TRIAL. THE COMPANY, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR
ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
CHRYSLER FINANCIAL CORPORATION
By: /s/ David A. Robison
---------------------------------------
Title: Vice President and Treasurer
CHEMICAL BANK, as Agent
By: /s/ Rosemary Bradley
--------------------------------------
Title: Vice President
EXHIBIT 12-A
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
COMPUTATIONS OF RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Six Months Ended
June 30,
(Unaudited)
--------------------
1995 1994
-------- ---------
(dollars in millions)
<S> <C> <C>
Net Earnings before cumulative effect
of changes in accounting principles $ 155 $ 91
Add back:
Taxes on income 81 53
Fixed charges 468 387
-------- --------
Earnings available for fixed charges $ 704 $ 531
======== ========
Fixed charges:
Interest expense $ 460 $ 378
Rent 8 9
-------- --------
Total fixed charges $ 468 $ 387
======== ========
Ratio of earnings to fixed charges 1.50 1.37
======== ========
</TABLE>
The ratios of earnings to fixed charges have been computed by dividing
earnings before income taxes and fixed charges by fixed charges. Fixed charges
consist of interest, amortization of debt discount and expense, and rentals.
Rentals included in fixed charges are the portion of total rent expense
representative of the interest factor (deemed to be one-third).
EXHIBIT 12-B
<TABLE>
<CAPTION>
CHRYSLER CORPORATION ENTERPRISE AS A WHOLE
COMPUTATIONS OF RATIOS OF EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
Six Months Ended
June 30,
(Unaudited)
------------------
1995 1994
-------- ------
(in millions of dollars)
<S> <C> <C>
Net earnings from continuing operations $ 727 $ 1,894
Add back:
Taxes on income 481 1,242
Fixed charges 682 648
Amortization of previously
capitalized interest 49 49
Deduct:
Capitalized interest 90 89
Undistributed earnings from
less than fifty-percent owned
affiliates 8 6
-------- --------
Earnings available for fixed charges $ 1,841 $ 3,738
======== =========
Fixed charges:
Interest expense $ 515 $ 482
Interest expense of unconsolidated
subsidiaries 0 0
Capitalized interest 90 89
Credit line commitment fees 4 6
Interest portion of rent expense 73 71
Gross up of preferred stock dividends of
majority-owned subsidiaries (CFC) to a
pretax basis 0 0
-------- --------
Total fixed charges $ 682 $ 648
======== ========
Ratio of earnings to fixed charges 2.70 5.77
Preferred stock dividend requirements 28 66
Ratio of earnings to fixed charges and
preferred stock dividend requirements 2.59 5.24
Equity taken up in earnings of less than
fifty-percent owned affiliates $ 8 $ 6
Deduct: Dividends paid by affiliates 0 0
-------- --------
Undistributed earnings from
less than fifty-percent owned affiliates $ 8 $ 6
======== ========
</TABLE>
For the purpose of computing the ratios of earnings to fixed charges and
preferred stock dividends, earnings are determined by adding back fixed
charges to consolidated earnings from continuing operations (including equity
in net earnings of unconsolidated subsidiaries) before taxes on income and
excluding undistributed earnings from less than fifty-percent owned
affiliates. Fixed charges consist of interest expense, credit line commitment
fees, interest portion of rental expense and the preferred stock dividend
requirements of its majority-owned subsidiaries increased to an amount
representing the pre-tax earnings that would be required to cover such
dividend requirements.
Exhibit 15-A
[Letterhead of DELOITTE & TOUCHE LLP]
DELOITTE &
TOUCHE LLP
____________ _________________________________________
Suite 900 Telephone (313) 396-3000
600 Renaissance Center
Detroit, Michigan 48243-1704
INDEPENDENT ACCOUNTANTS' REPORT
Shareholder and Board of Directors
Chrysler Financial Corporation
Southfield, Michigan
We have reviewed the accompanying consolidated balance sheet of Chrysler
Financial Corporation (a subsidiary of Chrysler Corporation) and
consolidated subsidiaries as of June 30, 1995 and 1994, and the related
consolidated statements of net earnings and cash flows for the three-months
and six-months ended June 30, 1995 and 1994. These financial statements
are the responsibility of the Company's management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical
procedures to financial data and making inquiries of persons responsible
for financial and accounting matters. It is substantially less in scope
than an audit conducted in accordance with generally accepted auditing
standards, the objective of which is the expression of an opinion regarding
the financial statements taken as a whole. Accordingly, we do not express
such an opinion.
Based on our review, we are not aware of any material modifications that
should be made to the consolidated financial statements referred to above
for them to be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Chrysler Financial Corporation
and consolidated subsidiaries as of December 31, 1994, and the related
consolidated statements of net earnings and cash flows for the year then
ended (not presented herein); and in our report dated January 16, 1995, we
expressed an unqualified opinion on those consolidated financial
statements. In our opinion, the information set forth in the accompanying
condensed consolidated balance sheet as of December 31, 1994 is fairly
presented, in all material respects, in relation to the consolidated
balance sheet from which it has been derived.
/s/ DELOITTE & TOUCHE LLP
July 13, 1995
_______________
Deloitte Touche
Tohmatsu
International
_______________
Exhibit 15-B
[Letterhead of DELOITTE & TOUCHE LLP]
DELOITTE &
TOUCHE LLP
____________ _________________________________________
Suite 900 Telephone (313) 396-3000
600 Renaissance Center
Detroit, Michigan 48243-1704
July 18, 1995
Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
interim financial information of Chrysler Financial Corporation (a
subsidiary of Chrysler Corporation) and its consolidated subsidiaries for
the periods ended June 30, 1995 and 1994, as indicated in our report dated
July 13, 1995, because we did not perform an audit, we expressed no opinion
on that information.
We are aware that our report referred to above, which is included in your
Form 10-Q for the six months ended June 30, 1995, is incorporated by
reference in Registration Statement Nos. 33-52421 and 33-55787 on Form S-3
and Registration Statement No. 33-55789 on Form S-3.
We also are aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act of 1933, is not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
/s/ DELOITTE & TOUCHE LLP
_______________
Deloitte Touche
Tohmatsu
International
_______________
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES FOR THE
SIX MONTHS ENDED JUNE 30, 1995 FINANCIAL DATA SCHEDULE
PURSUANT TO ARTICLE 5 OF S-X.
</LEGEND>
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