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, 1996
-------------
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) 948-3058
-------------------------
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,
1996.
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, 1995 (the "10-K Report").
2
<PAGE>
Chrysler Financial Corporation and Subsidiaries
ITEM 1. FINANCIAL STATEMENTS - CONTINUED
<TABLE>
<CAPTION>
Consolidated Statement of Net Earnings
(in millions of dollars)
Three Months Ended Six Months Ended
June 30, June 30,
------------------ ----------------
1996 1995 1996 1995
---- ---- ---- ----
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Finance Revenue:
Automotive financing:
Retail $ 198 $ 185 $ 416 $ 340
Wholesale and other 146 179 299 356
Rent income - leased vehicles 42 15 73 25
Nonautomotive financing 28 39 60 80
------ ----- ------ ------
Total finance revenue 414 418 848 801
Interest expense 211 247 427 460
------ ----- ------ ------
Net margin 203 171 421 341
Other revenues:
Servicing fee income 73 66 143 135
Insurance premiums earned 31 34 65 71
Investment and other income 107 110 180 181
------ ----- ------ ------
Net margin and other revenues 414 381 809 728
------ ----- ------ ------
Costs and expenses:
Operating expenses 107 97 217 192
Provision for credit losses 88 100 155 188
Insurance losses and loss
adjustment expenses 23 31 50 59
Depreciation and other expenses 41 26 78 53
------ ----- ------ ------
Total costs and expenses 259 254 500 492
------ ----- ------ ------
Earnings before income taxes 155 127 309 236
Provision for income taxes 54 41 110 81
------ ----- ------ ------
Net Earnings $ 101 $ 86 $ 199 $ 155
====== ===== ====== ======
<CAPTION>
Consolidated Statement of Six Months Ended
Shareholder's Investment June 30,
- ------------------------ ----------------
(in millions of dollars)
1996 1995
---- ----
(unaudited)
<S> <C> <C>
Balance at beginning of period $3,302 $3,273
Net earnings 199 155
Common stock dividends (182) (142)
Net unrealized holding (losses)
gains on securities (11) 15
------ ------
Balance at end of period $3,308 $3,301
====== ======
<FN>
Prior period reclassified to conform to current classifications.
See Notes to Consolidated Financial Statements.
</TABLE>
3
<PAGE>
Chrysler Financial Corporation and Subsidiaries
ITEM 1. FINANCIAL STATEMENTS - CONTINUED
<TABLE>
<CAPTION>
Consolidated Balance Sheet
(in millions of dollars)
June 30, December 31, June 30,
1996 1995 1995
------- ----------- --------
(unaudited) (unaudited)
<S> <C> <C> <C>
Assets:
Finance receivables - net (Note 1) $ 9,935 $12,644 $ 12,324
Retained interests in sold
receivables - net (Note 1) 3,715 2,733 2,774
------- ------- --------
Total finance receivables and
retained interests - net 13,650 15,377 15,098
Cash and cash equivalents 249 476 231
Marketable securities 911 674 757
Vehicles leased - net 660 397 266
Dealership properties leased - net 349 363 395
Repossessed collateral 194 194 163
Amounts due from affiliated companies 204 -- --
Other assets 546 354 357
------- ------- --------
Total Assets $16,763 $17,835 $17,267
======= ======= =======
Liabilities:
Debt (Note 3) 10,594 $11,769 $11,306
Accounts payable, accrued
expenses and other 1,349 1,236 1,125
Amounts due to affiliated companies -- 29 39
Deferred income taxes 1,512 1,499 1,496
------- ------- --------
Total Liabilities 13,455 14,533 13,966
------- ------- --------
Shareholder's Investment 3,308 3,302 3,301
------- ------- --------
Total Liabilities and
Shareholder's Investment $16,763 $17,835 $17,267
======= ======= =======
<FN>
Prior periods reclassified to conform to current classifications.
See Notes to Consolidated Financial Statements.
</TABLE>
4
<PAGE>
Chrysler Financial Corporation and Subsidiaries
ITEM 1. FINANCIAL STATEMENTS - CONTINUED
<TABLE>
<CAPTION>
Consolidated Statement of Cash Flows
(in millions of dollars)
Six Months Ended
June 30,
----------------
1996 1995
-------- --------
(unaudited)
<S> <C> <C>
Cash Flows From Operating Activities:
Net earnings $ 199 $ 155
Adjustments to reconcile net earnings to
net cash provided by operating activities:
Net gains from receivable sales (85) (38)
Provision for credit losses 155 188
Depreciation and amortization and
write-off of intangible assets 57 38
Change in deferred income taxes and income
taxes payable 21 (61)
Change in amounts due affiliated companies (66) 105
Change in accounts payable, accrued
expenses and other assets (29) (28)
-------- --------
Net cash provided by operating activities 252 359
-------- --------
Cash Flows From Investing Activities:
Acquisitions of finance receivables (38,184) (38,025)
Collections of finance receivables 14,068 13,831
Proceeds from sales of finance receivables 24,823 23,616
Purchases of marketable securities (495) (1,084)
Proceeds from sales and maturities of
marketable securities 989 932
Proceeds from sales of vehicles leased 25 44
Purchases of vehicles leased (332) (149)
Other (50) 40
-------- --------
Net cash provided by (used in) investing activities 844 (795)
-------- --------
Cash Flows From Financing Activities:
Change in short-term notes and affiliated borrowings (1,301) (920)
Proceeds from issuance of term debt 1,012 1,834
Repayment of term debt (955) (181)
Change in bank borrowings 96 --
Payment of dividends (182) (142)
Other 7 (98)
-------- --------
Net cash (used in) provided by financing activities (1,323) 493
-------- --------
Change in cash and cash equivalents (227) 57
Cash and cash equivalents at beginning of year 476 174
-------- --------
Cash and Cash Equivalents at End of Year $ 249 $ 231
======== =========
<FN>
During 1996, the Company acquired $750 million of marketable securities in
non-cash transactions relating to the securitization of retail receivables.
Prior period reclassified to conform to current classifications.
See Notes to Consolidated Financial Statements.
</TABLE>
5
<PAGE>
Chrysler Financial Corporation and Subsidiaries
ITEM 1. FINANCIAL STATEMENTS - CONTINUED
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,
1996 1995 1995
----------- ------------ --------
(unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C>
Automotive:
Retail $ 4,563 $ 6,528 $ 6,617
Wholesale and other 2,033 3,059 3,304
Retained senior interests in
sold wholesale receivables * 1,080 935 366
-------- -------- --------
Total automotive 7,676 10,522 10,287
-------- -------- --------
Nonautomotive:
Leveraged leases 1,881 1,679 1,564
Commercial 595 712 765
-------- -------- --------
Total nonautomotive 2,476 2,391 2,329
-------- -------- --------
Total finance receivables 10,152 12,913 12,616
Less allowance for credit losses (217) (269) (292)
-------- -------- --------
Total finance receivables - net $ 9,935 $ 12,644 $ 12,324
======== ======== ========
<FN>
*Represents receivables held in trust eligible to be securitized or
returned to the Company.
The Company's retained interests in sold receivables are generally
restricted and subject to limited recourse provisions. The following is a
summary of amounts included in "Retained interests in sold receivables -
net":
</TABLE>
<TABLE>
<CAPTION>
June 30, December 31, June 30,
1996 1995 1995
---------- ------------ --------
(unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C>
Cash and investments $ 712 $ 396 $ 752
Subordinated interests in receivables 2,895 2,234 1,955
Residual cash flows 201 166 129
Other 238 243 247
Allowance for credit losses (331) (306) (309)
------- ------- -------
Total retained interests in sold
receivables - net $ 3,715 $ 2,733 $ 2,774
======= ======= =======
</TABLE>
6
<PAGE>
Chrysler Financial Corporation and Subsidiaries
ITEM 1. FINANCIAL STATEMENTS - CONTINUED
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,
1996 1995 1995
-------- ------------ --------
(unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C>
Allowance for losses deducted from:
Finance receivables $217 $269 $292
Retained interests in sold receivables 331 306 309
Vehicles leased 5 3 3
---- ---- ----
Total $553 $578 $604
==== ==== ====
</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,
1996 1995 1995
------- ------------ --------
(unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C>
Retail $15,245 $13,043 $12,842
Wholesale and other 7,791 8,010 7,926
------- ------- -------
Total $23,036 $21,053 $20,768
======= ======= =======
</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 $85 million and $38 million for the six months
ended June 30, 1996 and 1995, respectively. The provision for credit losses
related to such sales amounted to $131 million and $87 million for the six
months ended June 30, 1996 and 1995, respectively.
The Company is committed to sell all wholesale receivables related to certain
dealer accounts.
7
<PAGE>
Chrysler Financial Corporation and Subsidiaries
ITEM 1. FINANCIAL STATEMENTS - CONTINUED
Note 3 - Debt
<TABLE>
<CAPTION>
Weighted Average
Interest Rates at June 30, December 31, June 30,
June 30, 1996 1996 1995 1995
----------------- -------- ----------- --------
Maturity (unaudited) (unaudited)
(in millions of dollars)
<S> <C> <C> <C> <C>
Short-term notes placed primarily in the
open market:
United States $ 568 $ 2,194 $ 2,824
Canada 566 241 571
------- ------- -------
Total short-term notes
(primarily commercial paper) 5.2% 1,134 2,435 3,395
------- ------- -------
Bank borrowings - international 96 -- --
------- ------- -------
Senior term debt:
United States, due
1995 -- -- 783
1996 6.5% 977 1,601 1,602
1997 6.4% 2,878 2,878 1,614
1998 6.3% 2,310 1,885 1,349
1999 8.4% 1,521 1,394 1,331
2000 6.3% 778 770 475
Thereafter 5.5% 450 391 351
------- ------- -------
Total United States 8,914 8,919 7,505
Canada, due 1995-1999 8.1% 380 317 219
Less unamortized discount 3 2 2
------- ------- -------
Total senior term debt 9,291 9,234 7,722
------- ------- -------
Subordinated term debt:
United States
Senior -- -- 27
Other borrowings 73 100 162
------- ------- -------
Total debt $10,594 $11,769 $11,306
======= ======= =======
</TABLE>
The Company has contractual debt maturities of $2.3 billion during the
remainder of 1996 (including $1.1 billion of short-term notes), $2.9 billion
in 1997 and $2.5 billion in 1998.
Credit Facilities
During the second quarter of 1996, the Company entered into new revolving
credit facilities which replaced its existing U.S. and Canadian credit
facilities. The new facilities which total $8.0 billion consist of a $2.0
billion facility expiring in April, 1997 and a $6.0 billion facility
expiring in April, 2001. These facilities include $0.8 billion allocated to
Chrysler Credit Canada Ltd.
8
<PAGE>
Chrysler Financial Corporation and Subsidiaries
ITEM 1. FINANCIAL STATEMENTS - CONTINUED
Note 4 - Transfer of Ownership in Subsidiary
Effective as of January 1, 1996, the Company contributed the shares of its
wholly-owned subsidiary, Chrysler Comercial, S.A. de C.V. to Grupo Chrysler
de Mexico, S.A. de C.V. ("Grupo") in exchange for shares of Grupo. The
noncash exchange was recorded at historical cost resulting in an increase
in "Other assets" of approximately $59 million and a decrease in "Finance
receivables - net" of $278 million, "Debt" of $34 million, "Amounts due to
affiliated companies" of $167 million and "Deferred income taxes" of $13
million. The Company has recorded its investment in Grupo under the cost
method.
9
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Financial Review
Chrysler Financial Corporation and its consolidated subsidiaries' (the
"Company") net earnings were $101 million and $199 million for the three and
six months ended June 30, 1996, compared to $86 million and $155 million for
the three and six months ended June 30, 1995. The increase in net earnings for
the three and six months ended June 30, 1996, primarily reflects higher
average receivables outstanding, net margin improvements due to lower
effective borrowing costs and higher gains from increased receivable sales.
Automotive volume totaled $20.2 billion and $40.4 billion for the three and
six months ended June 30, 1996, compared with $21.4 billion and $41.9 billion
in the comparable periods of 1995. 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, 1996 and 1995 were as follows:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ ----------------
1996 1995 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
United States Penetration:
Retail 19% 28% 19% 29%
Wholesale 74% 78% 72% 75%
Number of New Chrysler Vehicles
Financed in the United States
(in thousands):
Retail 133 171 248 329
Wholesale 491 401 934 828
</TABLE>
The decrease in retail penetration is primarily due to increased competition
and actions taken by the Company to improve retail credit quality mix.
Net margin totaled $203 million and $421 million for the three and six months
ended June 30, 1996, compared to $171 million and $341 million for the
comparable periods of 1995. Automotive financing revenue totaled $386 million
and $788 for the three and six months ended June 30, 1996, compared to $379
million and $721 million in the comparable periods of 1995.
Finance revenue from the Company's nonautomotive financing operations declined
to $28 million and $60 million for the three and six months ended June 30,
1996, compared to $39 million and $80 million in the comparable periods of
1995. The Company reduced its nonautomotive commercial loans to $0.6 billion
at June 30, 1996, a reduction of 22 percent from a year ago.
10
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
Financial Review (continued)
A comparison of the borrowing costs is shown in the following table:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ ----------------
1996 1995 1996 1995
---- ---- ---- ----
(dollars in millions)
<S> <C> <C> <C> <C>
Interest expense $ 211 $ 247 $ 427 $ 460
Average borrowings $12,422 $11,632 $12,305 $11,385
Average effective cost of
borrowings - consolidated 6.8% 8.3% 7.0% 8.1%
Average effective cost of
borrowings - U.S. and Canada 6.8% 7.5% 7.0% 7.5%
</TABLE>
The decline in the average effective borrowing costs to June 30, 1996 from
June 30, 1995, primarily reflects lower market interest rates in the United
States and Canada.
Investment and other income totaled $107 million and $180 million for the
three and six months ended June 30, 1996, compared to $110 million and $181
million in the comparable periods of 1995. The change in investment and other
income was primarily due to an increase in gains on receivable sales offset by
a decrease in interest income earned on cash equivalents and marketable
securities.
Operating expenses totaled $107 million and $217 million for the three and six
months ended June 30, 1996, compared to $97 million and $192 million for the
comparable periods of 1995. The increase in operating expenses reflects higher
average finance receivables managed.
Provision for credit losses for the three and six months ended June 30, 1996,
totaled $88 million and $155 million, compared to $100 million and $188
million for the comparable periods of 1995. The decline in provision for
credit losses was primarily due to the lower level of retail automotive
receivables acquired.
Depreciation and other expenses for the three and six months ended June 30,
1996, totaled $41 million and $78 million, compared to $26 million and $53
million for the comparable periods of 1995. The increase was due to the
increase of leased vehicles.
Total assets at June 30, 1996 were $16.8 billion, compared to $17.8 billion at
December 31, 1995, and $17.3 billion a year ago. Total debt outstanding at
June 30, 1996 was $10.6 billion, compared to $11.8 billion at December 31,
1995 and $11.3 billion a year ago. Total assets and debt decreased due to
higher levels of receivable sales. Average receivables outstanding were higher
for the three and six months ended June 30, 1996, over 1995 comparable
periods, while total receivables and assets decreased from year end 1995
levels due to $3.6 billion in retail receivable sales proceeds during the
second quarter of 1996. The Company's debt-to-equity ratio was 3.2 to 1 at
June 30, 1996, compared to 3.6 to 1 at December 31, 1995, and 3.4 to 1 at
June 30, 1995.
11
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
Financial Review (continued)
The Company's portfolio of receivables managed, which includes receivables
owned and receivables serviced for others, totaled $37.1 billion at June 30,
1996, compared to $38.1 billion at December 31, 1995, and $36.7 billion at
June 30, 1995. The decrease in receivables managed from December 31, 1995
reflects lower volume of automotive receivables acquired during 1996.
Receivables serviced for others totaled $26.9 billion at June 30, 1996,
compared to $25.2 billion at December 31, 1995, and $24.0 billion at
June 30, 1995.
Net credit loss experience, including net losses on receivables sold subject
to limited recourse provisions, for the three and six months ended June 30,
1996 and 1995 was as follows:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ ----------------
1996 1995 1996 1995
---- ---- ---- ----
Net Credit Losses: (in millions of dollars) (in millions of dollars)
<S> <C> <C> <C> <C>
Automotive financing $ 76 $ 37 $ 176 $ 82
Nonautomotive financing 2 12 5 19
----- ----- ----- -----
Total $ 78 $ 49 $ 181 $ 101
===== ===== ===== =====
<CAPTION>
Net Credit Losses to Three Months Ended Six Months Ended
Average Receivables June 30, June 30,
Outstanding ------------------ ----------------
1996 1995 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
Automotive financing 0.90% 0.45% 1.04% 0.51%
Nonautomotive financing 0.28% 1.40% 0.27% 1.13%
Total 0.84% 0.53% 0.97% 0.57%
</TABLE>
During the fourth quarter of 1995 and the first six months of 1996, the
Company experienced higher credit losses on automotive retail receivables.
Company management attributes the increased losses to the combined effect of
general economic conditions, changes in the credit mix of the Company's retail
receivable originations that resulted in an increase in the frequency of
repossessions, and organizational realignments that affected retail
collections. Second quarter 1996 net credit losses improved 24 percent as
compared to the first quarter of 1996 due to an improved credit mix of retail
originations and the continuation of organizational realignments.
The Company's total allowance for credit losses totaled $553 million, $578
million, and $604 million at June 30, 1996, December 31, 1995, and June 30,
1995, respectively. The allowance for credit losses as a percentage of related
finance receivables outstanding was 1.65 percent at June 30, 1996, 1.69
percent at December 31, 1995, and 1.80 percent at June 30, 1995.
12
<PAGE>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
Financial Review (continued)
Effective as of January 1, 1996, the Company contributed the shares of its
wholly-owned subsidiary, Chrysler Comercial, S.A. de C.V. to Grupo Chrysler de
Mexico, S.A. de C.V. ("Grupo") in exchange for shares of Grupo. The exchange
was recorded at historical cost. The Company has recorded its investment in
Grupo under the cost method.
Liquidity and Capital Resources
Receivable sales continued to be a significant source of funding in the six
months of 1996 as the Company realized $4.7 billion of net proceeds from the
sale of automotive retail receivables, compared to $3.2 billion of net
proceeds in the same period of 1995. Securitization of revolving wholesale
account balances provided funding which aggregated $6.6 billion and $7.3
billion at June 30, 1996 and 1995, respectively.
At June 30, 1996, the Company had contractual debt maturities of $2.3 billion
during the remainder of 1996 (including $1.1 billion of short-term notes),
$2.9 billion in 1997 and $2.5 billion in 1998.
During the second quarter of 1996, the Company entered into new revolving
credit facilities which replaced its existing U.S. and Canadian credit
facilities. The new facilities which total $8.0 billion consist of a $2.0
billion facility expiring in April, 1997 and a $6.0 billion facility expiring
in April, 2001. These facilities include $0.8 billion allocated to Chrysler
Credit Canada Ltd.
The Company paid $182 million and $142 million in dividends to Chrysler
Corporation in the first six months of 1996 and 1995, respectively.
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 June 1996, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 125, "Accounting for
Transfers and Servicing of Financial Assets and Extinguishments of
Liabilities," effective for transfers and servicing of financial assets and
extinguishments of liabilities occurring after December 31, 1996. The Company
has not determined the impact that the adoption of this accounting standard
will have on its results of operations or financial position. The Company will
adopt this accounting standard on January 1, 1997, 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 six months ended June 30, 1996
and 1995 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.
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.
Exhibits
--------
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.
14
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
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 Supplemental Indenture, dated as of August 24,
1995, between Chrysler Financial Corporation and the
United States Trust Company of New York, as Trustee, to
the Indenture, dated as of June 15, 1984, related to
Senior Debt Securities of Chrysler Financial Corporation.
Filed as Exhibit 4-K to the Current Report of Chrysler
Financial Corporation on Form 8-K, dated August 24, 1995,
and incorporated herein by reference.
4-C 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-D 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-E 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-F 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.
15<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
4-G 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-H 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-I 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-J 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-K 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-L 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.
16
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
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
April 26, 1996, 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
April 26, 1996, 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 Sixth Amended and Restated Commitment Transfer
Agreement, dated as of April 26, 1996, 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.
17
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
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 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-U 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-V 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-W 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-X 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-Y 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.
18
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
10-Z 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-AA 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-BB 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-CC 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-DD 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-EE 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-FF 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-GG 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-HH 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-II 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-JJ 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.
19
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
10-KK 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-LL 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-MM 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-NN 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-OO 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-PP 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-QQ 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-RR 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-SS 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-TT 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.
20<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
10-UU 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-VV 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-WW 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-XX 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-YY 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-ZZ Copy of Series 1995-1 Supplement, dated as of September
20, 1995, among Chrysler Credit Canada Ltd., The Royal
Trust Company, Pure Trust, Auto Receivables Corporation
and Chrysler Financial Corporation, to the Master
Custodial and Servicing Agreement, dated as of September
1, 1992. Filed as Exhibit 10-NNN to the Quarterly Report
on Form 10-Q of Chrysler Financial Corporation for the
quarter ended September 30, 1995, and incorporated herein
by reference.
10-AAA 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-BBB 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.21
10-CCC 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-DDD 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.
21
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
10-EEE 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-FFF 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-GGG 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-HHH 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-III 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-JJJ 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-KKK 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-LLL 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-MMM 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-NNN 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.
22
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
10-OOO 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-PPP 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-QQQ 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-RRR 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-SSS 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-TTT 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-UUU 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.
10-VVV Copy of Amended and Restated Trust Agreement, dated as of
April 1, 1995, among Premier Auto Receivables Company,
Chrysler Financial Corporation and Chemical Bank Delaware,
as Owner Trustee, with respect to Premier Auto Trust
1995-2. Filed as Exhibit 4.1 to the Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995 of Premier
Auto Trust 1995-2, and incorporated herein by reference.
10-WWW Copy of Indenture, dated as of April 1, 1995, between
Premier Auto Trust 1995-2 and The Bank of New York, as
Indenture Trustee, with respect to Premier Auto Trust
1995-2. Filed as Exhibit 4.2 to the Quarterly report on
Form 10-Q for the quarter ended June 30, 1995 of Premier
Auto Trust 1995-2, and incorporated herein by reference.
10-XXX Copy of Sale and Servicing Agreement, dated as of April 1,
1995, among Premier Auto Trust 1995-2, Chrysler Credit
Corporation and Chrysler Financial Corporation, with
respect to Premier Auto Trust 1995-2. Filed as Exhibit 4.3
to the Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995 of Premier Auto Trust 1995-2, and
incorporated herein by reference.
23<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
10-YYY Copy of Series 1995-3 Supplement, dated as of April 30,
1995, among U.S. Auto Receivables Company, Chrysler Credit
Corporation and Manufacturers and Traders Trust Company,
as Trustee, with respect to CARCO Auto Loan Master Trust
1995-3. Filed as Exhibit 4-Z to the Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995 of CARCO
Auto Loan Master Trust, and incorporated herein by
reference.
10-ZZZ Copy of Series 1995-4 Supplement, dated as of April 30,
1995, among U.S. Auto Receivables Company, Chrysler Credit
Corporation and Manufacturers and Traders Trust Company,
as Trust, with respect to CARCO Auto Loan Master Trust
Series 1995-4. Filed as Exhibit 4-AA to the Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995 of
CARCO Auto Loan Master Trust, and incorporated herein by
reference.
10-AAAA Copy of Series 1995-4A Supplement, dated as of April 30,
1995, among U.S. Auto Receivables Company, Chrysler Credit
Corporation and Manufacturers and Traders Trust Company,
as Trustee, with respect to CARCO Auto Loan Master Trust
Series 1995-4A. Filed as Exhibit 4-BB to the Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995 of
CARCO Auto Loan Master Trust, and incorporated herein by
reference.
10-BBBB Copy of Master Receivables Purchase Agreement, made as of
July 24, 1995, among Chrysler Credit Canada Ltd., The
Royal Trust Company and Chrysler Financial Corporation,
with respect to Pure Trust 1995-1. Filed as Exhibit
10-RRRR to the Quarterly Report on Form 10-Q of Chrysler
Financial Corporation for the quarter ended September 30,
1995, and incorporated herein by reference.
10-CCCC Copy of Terms Schedule, dated as of July 24, 1995, among
Chrysler Credit Canada Ltd., The Royal Trust Company and
Chrysler Financial Corporation, with respect to Pure Trust
1995-1. Filed as Exhibit 10-SSSS to the Quarterly Report
on Form 10-Q of Chrysler Financial Corporation for the
quarter ended September 30, 1995, and incorporated herein
by reference.
10-DDDD Copy of Receivables Purchase Agreement, dated as of
December 14, 1995, among Chrysler Financial Corporation,
Premier Auto Receivables Company, Chrysler Credit
Corporation, and ABN AMRO Bank N.V., as Agent, with
respect to the sale of retail automotive receivables to
Windmill Funding Corporation, Series 1995-2. Filed as
Exhibit 10-KKKK to the Annual Report on Form 10-K of
Chrysler Financial Corporation for the year ended December
31, 1995, and incorporated herein by reference.
10-EEEE Copy of Certificate of Trust of Premier Auto Trust 1995-3.
Filed as Exhibit 3 to the Quarterly Report on Form 10-Q of
Premier Auto Trust 1995-3 for the quarter ended September
30, 1995, and incorporated herein by reference.
10-FFFF Copy of Amended and Restated Trust Agreement, dated as of
July 1, 1995, among Premier Auto Receivables Company,
Chrysler Financial Corporation and Chemical Bank Delaware,
as Owner Trustee, with respect to Premier Auto Trust
1995-3. Filed as Exhibit 4.1 to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1995-3 for the quarter
ended September 30, 1995, and incorporated herein by
reference.
10-GGGG Copy of Indenture, dated as of July 1, 1995, between
Premier Auto Trust 1995-3 and The Bank of New York, as
Indenture Trustee, with respect to Premier Auto Trust
1995-3. Filed as Exhibit 4.2 to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1995-3 for the quarter
ended September 30, 1995, and incorporated herein by
reference.
10-HHHH Copy of Sale and Servicing Agreement, dated as of July 1,
1995, among Premier Auto Trust 1995-3, Chrysler Credit
Corporation and Chrysler Financial Corporation, with
respect to Premier Auto Trust 1995-3. Filed as Exhibit 4.3
to the Quarterly Report on Form 10-Q of Premier Auto Trust
1995-3 for the quarter ended September 30, 1995, and
incorporated herein by reference.
24
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
- ------- --------------------------------------------
10-IIII Copy of Terms Schedule among Chrysler Credit Canada Ltd.,
CORE Trust and Chrysler Financial Corporation, dated as of
December 14, 1995, with respect to CORE Trust 1995-1.
Filed as Exhibit 10-PPPP to the Annual Report of Chrysler
Financial Corporation for the year ended December 31,
1995, and incorporated herein by reference.
10-JJJJ Copy of Agreement and Plan of Merger, dated as of December
31, 1995, between Chrysler Financial Corporation and
Chrysler Credit Corporation, providing for the merger of
these two corporations on December 31, 1995, with Chrysler
Financial Corporation being the surviving corporation.
Filed as Exhibit 10-QQQQ to the Annual Report of Chrysler
Financial Corporation for the year ended December 31,
1995, and incorporated by reference.
10-KKKK Copy of Amended and Restated Trust Agreement, dated as of
November 1, 1995, among Premier Auto Receivables Company,
Chrysler Financial Corporation and Chemical Bank Delaware,
as Owner Trustee, with respect to Premier Auto Receivables
1995-4. Filed as Exhibit 4.1 to the Annual Report on Form
10-K of Premier Auto Trust 1995-4 for the year ended
December 31, 1995, and incorporated herein by reference.
10-LLLL Copy of Certificate of Trust of Premier Auto Trust 1995-4.
Filed as Exhibit 3 to the Annual Report on Form 10-K of
Premier Auto Trust 1995-4 for the year ended December 31,
1995, and incorporated herein by reference.
10-MMMM Copy of Indenture, dated as of November 1, 1995, between
Premier Auto Trust 1995-4 and The Bank of New York, as
Indenture Trustee, with respect to Premier Auto Trust
1995-4. Filed as Exhibit 4.2 to the Annual Report on Form
10-K of Premier Auto Trust 1995-4 for the year ended
December 31, 1995, and incorporated herein by reference.
10-NNNN Copy of Sale and Servicing Agreement, dated as of November
1, 1995, among Premier Auto Trust 1995-4, Chrysler Credit
Corporation and Chrysler Financial Corporation, with
respect to Premier Auto Trust 1995-4. Filed as Exhibit 4.3
to the Annual Report on Form 10-K of Premier Auto Trust
1995-4 for the year ended December 31, 1995, and
incorporated herein by reference.
10-OOOO Copy of Receivables Purchase Agreement, dated as of May
30, 1996, among Premier Auto Receivables Company, Chrysler
Financial Corporation, and ABN AMRO Bank, N.V., as Agent,
with respect to the sale of retail automotive receivables
to Windmill Funding Corporation, Series 1996-1.
10-PPPP Copy of Certificate of Trust of Premier Auto Trust 1996-1.
Filed as Exhibit 3 to the Quarterly Report on Form 10-Q of
Premier Auto Trust 1996-1 for the quarter ended March 31,
1996, and incorporated herein by reference.
10-QQQQ Copy of Amended and Restated Trust Agreement, dated as of
March 1, 1996, among Premier Auto Receivables Company,
Chrysler Financial Corporation and Chemical Bank Delaware,
as Owner Trustee, with respect to Premier Auto Trust
1996-1. Filed as Exhibit 4.1 to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1996-1 for the quarter
ended March 31, 1996, and incorporated herein by
reference.
10-RRRR Copy of Indenture, dated as of March 1, 1996, between
Premier Auto Trust 1996-1 and The Bank of New York, as
Indenture Trustee (excluding Schedule A), with respect to
Premier Auto Trust 1996-1. Filed as Exhibit 4.2 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1996-
1 for the quarter ended March 31, 1996, and incorporated
herein by reference.
10-SSSS Copy of Sale and Servicing Agreement, dated as of March 1,
1996, between Premier Auto Trust 1996-1 and Chrysler
Financial Corporation (excluding Schedules A and C), for
Premier Auto Trust 1996-1. Filed as Exhibit 4.3 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1996-1
for the quarter ended March 31, 1996, and incorporated by
reference.
25
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
------- --------------------------------------------
10-TTTT Copy of Receivables Sale Agreement, dated as of June 27,
1996, among Premier Receivables L.L.C., Chrysler Financial
Corporation, Asset Securitization Cooperative Corporation
and Canadian Imperial Bank of Commerce, as Administrative
Agent.
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
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 June 30, 1996.
Date of Report Date Filed Item Reported
-------------- ---------- -------------
May 8, 1996 May 9, 1996 5
June 10, 1996 June 11, 1996 5
Financial Statements Filed
--------------------------
None
26
<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 12, 1996 By: S/ T.F. Gilman
------------------------------
T.F. Gilman
Vice President and Controller
Principal Accounting Officer
27
<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.
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.
E-1
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
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 Supplemental Indenture, dated as of August 24,
1995, between Chrysler Financial Corporation and the
United States Trust Company of New York, as Trustee, to
the Indenture, dated as of June 15, 1984, related to
Senior Debt Securities of Chrysler Financial Corporation.
Filed as Exhibit 4-K to the Current Report of Chrysler
Financial Corporation on Form 8-K, dated August 24, 1995,
and incorporated herein by reference.
4-C 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-D 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-E 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-F 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-G 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-H 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-I 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.
E-2
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
4-J 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-K 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-L 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
April 26, 1996, 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.
E-3
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
10-H Copy of Long Term Revolving Credit Agreement, dated as of
April 26, 1996, 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 Sixth Amended and Restated Commitment Transfer
Agreement, dated as of April 26, 1996, 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.
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.
E-4
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
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 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-U 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-V 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-W 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-X 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-Y 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-Z 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-AA 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.
E-5
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
10-BB 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-CC 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-DD 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-EE 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-FF 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-GG 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-HH 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-II 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-JJ 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-KK 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.
E-6
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
10-LL 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-MM 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-NN 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-OO 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-PP 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-QQ 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-RR 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-SS 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-TT 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-UU 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.
E-7
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
10-VV 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-WW 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-XX 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-YY 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-ZZ Copy of Series 1995-1 Supplement, dated as of September
20, 1995, among Chrysler Credit Canada Ltd., The Royal
Trust Company, Pure Trust, Auto Receivables Corporation
and Chrysler Financial Corporation, to the Master
Custodial and Servicing Agreement, dated as of September
1, 1992. Filed as Exhibit 10-NNN to the Quarterly Report
on Form 10-Q of Chrysler Financial Corporation for the
quarter ended September 30, 1995, and incorporated herein
by reference.
10-AAA 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-BBB 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-CCC 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-DDD 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.
E-8
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
10-EEE 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-FFF 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-GGG 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-HHH 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-III 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-JJJ 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-KKK 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-LLL 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-MMM 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-NNN 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.
E-9
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
10-OOO 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-PPP 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-QQQ 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-RRR 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-SSS 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-TTT 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-UUU 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.
10-VVV Copy of Amended and Restated Trust Agreement, dated as of
April 1, 1995, among Premier Auto Receivables Company,
Chrysler Financial Corporation and Chemical Bank Delaware,
as Owner Trustee, with respect to Premier Auto Trust
1995-2. Filed as Exhibit 4.1 to the Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995 of Premier
Auto Trust 1995-2, and incorporated herein by reference.
10-WWW Copy of Indenture, dated as of April 1, 1995, between
Premier Auto Trust 1995-2 and The Bank of New York, as
Indenture Trustee, with respect to Premier Auto Trust
1995-2. Filed as Exhibit 4.2 to the Quarterly report on
Form 10-Q for the quarter ended June 30, 1995 of Premier
Auto Trust 1995-2, and incorporated herein by reference.
10-XXX Copy of Sale and Servicing Agreement, dated as of April 1,
1995, among Premier Auto Trust 1995-2, Chrysler Credit
Corporation and Chrysler Financial Corporation, with
respect to Premier Auto Trust 1995-2. Filed as Exhibit 4.3
to the Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995 of Premier Auto Trust 1995-2, and
incorporated herein by reference.
E-10<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
10-YYY Copy of Series 1995-3 Supplement, dated as of April 30,
1995, among U.S. Auto Receivables Company, Chrysler Credit
Corporation and Manufacturers and Traders Trust Company,
as Trustee, with respect to CARCO Auto Loan Master Trust
1995-3. Filed as Exhibit 4-Z to the Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995 of CARCO
Auto Loan Master Trust, and incorporated herein by
reference.
10-ZZZ Copy of Series 1995-4 Supplement, dated as of April 30,
1995, among U.S. Auto Receivables Company, Chrysler Credit
Corporation and Manufacturers and Traders Trust Company,
as Trust, with respect to CARCO Auto Loan Master Trust
Series 1995-4. Filed as Exhibit 4-AA to the Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995 of
CARCO Auto Loan Master Trust, and incorporated herein by
reference.
10-AAAA Copy of Series 1995-4A Supplement, dated as of April 30,
1995, among U.S. Auto Receivables Company, Chrysler Credit
Corporation and Manufacturers and Traders Trust Company,
as Trustee, with respect to CARCO Auto Loan Master Trust
Series 1995-4A. Filed as Exhibit 4-BB to the Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995 of
CARCO Auto Loan Master Trust, and incorporated herein by
reference.
10-BBBB Copy of Master Receivables Purchase Agreement, made as of
July 24, 1995, among Chrysler Credit Canada Ltd., The
Royal Trust Company and Chrysler Financial Corporation,
with respect to Pure Trust 1995-1. Filed as Exhibit
10-RRRR to the Quarterly Report on Form 10-Q of Chrysler
Financial Corporation for the quarter ended September 30,
1995, and incorporated herein by reference.
10-CCCC Copy of Terms Schedule, dated as of July 24, 1995, among
Chrysler Credit Canada Ltd., The Royal Trust Company and
Chrysler Financial Corporation, with respect to Pure Trust
1995-1. Filed as Exhibit 10-SSSS to the Quarterly report
on Form 10-Q of Chrysler Financial Corporation for the
quarter ended September 30, 1995, and incorporated herein
by reference.
10-DDDD Copy of Receivables Purchase Agreement, dated as of
December 14, 1995, among Chrysler Financial Corporation,
Premier Auto Receivables Company, Chrysler Credit
Corporation, and ABN AMRO Bank N.V., as Agent, with
respect to the sale of retail automotive receivables to
Windmill Funding Corporation, Series 1995-2. Filed as
Exhibit 10-KKKK to the Annual Report on Form 10-K of
Chrysler Financial Corporation for the year ended December
31, 1995, and incorporated herein by reference.
10-EEEE Copy of Certificate of Trust of Premier Auto Trust 1995-3.
Filed as Exhibit 3 to the Quarterly Report on Form 10-Q of
Premier Auto Trust 1995-3 for the quarter ended September
30, 1995, and incorporated herein by reference.
10-FFFF Copy of Amended and Restated Trust Agreement, dated as of
July 1, 1995, among Premier Auto Receivables Company,
Chrysler Financial Corporation and Chemical Bank Delaware,
as Owner Trustee, with respect to Premier Auto Trust
1995-3. Filed as Exhibit 4.1 to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1995-3 for the quarter
ended September 30, 1995, and incorporated herein by
reference.
10-GGGG Copy of Indenture, dated as of July 1, 1995, between
Premier Auto Trust 1995-3 and The Bank of New York, as
Indenture Trustee, with respect to Premier Auto Trust
1995-3. Filed as Exhibit 4.2 to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1995-3 for the quarter
ended September 30, 1995, and incorporated herein by
reference.
E-11
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
10-HHHH Copy of Sale and Servicing Agreement, dated as of July 1,
1995, among Premier Auto Trust 1995-3, Chrysler Credit
Corporation and Chrysler Financial Corporation, with
respect to Premier Auto Trust 1995-3. Filed as Exhibit 4.3
to the Quarterly Report on Form 10-Q of Premier Auto Trust
1995-3 for the quarter ended September 30, 1995, and
incorporated herein by reference.
10-IIII Copy of Terms Schedule among Chrysler Credit Canada Ltd.,
CORE Trust and Chrysler Financial Corporation, dated as of
December 14, 1995, with respect to CORE Trust 1995-1.
Filed as Exhibit 10-PPPP to the Annual Report of Chrysler
Financial Corporation for the year ended December 31,
1995, and incorporated by reference.
10-JJJJ Copy of Agreement and Plan of Merger, dated as of December
31, 1995, between Chrysler Financial Corporation and
Chrysler Credit Corporation, providing for the merger of
these two corporations on December 31, 1995, with Chrysler
Financial Corporation being the surviving corporation.
Filed as Exhibit 10-QQQQ to the Annual Report of Chrysler
Financial Corporation for the year ended December 31,
1995, and incorporated by reference.
10-KKKK Copy of Amended and Restated Trust Agreement, dated as of
November 1, 1995, among Premier Auto Receivables Company,
Chrysler Financial Corporation and Chemical Bank Delaware,
as Owner Trustee, with respect to Premier Auto Receivables
1995-4. Filed as Exhibit 4.1 to the Annual Report on Form
10-K of Premier Auto Trust 1995-4 for the year ended
December 31, 1995, and incorporated herein by reference.
10-LLLL Copy of Certificate of Trust of Premier Auto Trust 1995-4.
Filed as Exhibit 3 to the Annual Report on Form 10-K of
Premier Auto Trust 1995-4 for the year ended December 31,
1995, and incorporated herein by reference.
10-MMMM Copy of Indenture, dated as of November 1, 1995, between
Premier Auto Trust 1995-4 and The Bank of New York, as
Indenture Trustee, with respect to Premier Auto Trust
1995-4. Filed as Exhibit 4.2 to the Annual Report on Form
10-K of Premier Auto Trust 1995-4 for the year ended
December 31, 1995, and incorporated herein by reference.
10-NNNN Copy of Sale and Servicing Agreement, dated as of November
1, 1995, among Premier Auto Trust 1995-4, Chrysler Credit
Corporation and Chrysler Financial Corporation, with
respect to Premier Auto Trust 1995-4. Filed as Exhibit 4.3
to the Annual Report on Form 10-K of Premier Auto Trust
1995-4 for the year ended December 31, 1995, and
incorporated herein by reference.
10-OOOO Copy of Receivables Purchase Agreement, dated as of May
30, 1996, among Premier Auto Receivables Company, Chrysler
Financial Corporation, and ABN AMRO Bank, N.V., as Agent,
with respect to the sale of retail automotive receivables
to Windmill Funding Corporation, Series 1996-1.
10-PPPP Copy of Certificate of Trust of Premier Auto Trust 1996-1.
Filed as Exhibit 3 to the Quarterly Report on Form 10-Q of
Premier Auto Trust 1996-1 for the quarter ended March 31,
1996, and incorporated herein by reference.
10-QQQQ Copy of Amended and Restated Trust Agreement, dated as of
March 1, 1996, among Premier Auto Receivables Company,
Chrysler Financial Corporation and Chemical Bank Delaware,
as Owner Trustee, with respect to Premier Auto Trust
1996-1. Filed as Exhibit 4.1 to the Quarterly Report on
Form 10-Q of Premier Auto Trust 1996-1 for the quarter
ended March 31, 1996, and incorporated herein by
reference.
E-12
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K - continued
10-RRRR Copy of Indenture, dated as of March 1, 1996, between
Premier Auto Trust 1996-1 and The Bank of New York, as
Indenture Trustee (excluding Schedule A), with respect to
Premier Auto Trust 1996-1. Filed as Exhibit 4.2 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1996-1
for the quarter ended March 31, 1996, and incorporated
herein by reference.
10-SSSS Copy of Sale and Servicing Agreement, dated as of March 1,
1996, between Premier Auto Trust 1996-1 and Chrysler
Financial Corporation (excluding Schedules A and C), for
Premier Auto Trust 1996-1. Filed as Exhibit 4.3 to the
Quarterly Report on Form 10-Q of Premier Auto Trust 1996-1
for the quarter ended March 31, 1996, and incorporated by
reference.
10-TTTT Copy of Receivables Sale Agreement, dated as of June 27,
1996, among Premier Receivables L.L.C., Chrysler Financial
Corporation, Asset Securitization Cooperative Corporation
and Canadian Imperial Bank of Commerce, as Administrative
Agent.
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-13
<PAGE>
This page intentionally left blank.
E-14
Exhibit 10-G
CONFORMED COPY
==============================================================================
$2,000,000,000
SHORT TERM REVOLVING CREDIT AGREEMENT
Dated as of April 26, 1996
CHRYSLER FINANCIAL CORPORATION and
CHRYSLER CREDIT CANADA LTD.,
as BORROWERS
ABN AMRO BANK, N.V.,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF COMMERCE,
CREDIT SUISSE, FIRST CHICAGO NBD CORPORATION,
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONSBANK OF NORTH CAROLINA, N.A.,
SOCIETE GENERALE and THE TORONTO-DOMINION BANK,
as MANAGING AGENTS
ROYAL BANK OF CANADA,
as CANADIAN ADMINISTRATIVE AGENT
CHEMICAL BANK,
as ADMINISTRATIVE AGENT
==============================================================================
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.................................................... 1
1.1 Defined Terms................................................. 1
1.2 Other Definitional Provisions................................. 16
SECTION 2. THE U.S. COMMITMENTS........................................... 16
2.1 The U.S. Commitments.......................................... 16
2.2 Procedure for Borrowing....................................... 17
2.3 Conversion and Continuation Options........................... 17
2.4 Minimum Amount of Eurodollar Tranches......................... 18
2.5 Certain Matters Relating to Eurodollar Loans.................. 18
SECTION 3. THE CANADIAN COMMITMENTS....................................... 19
3.1 The Canadian Commitments...................................... 19
3.2 Procedure for C$ R/C Loan Borrowing........................... 19
3.3 Bankers' Acceptances.......................................... 20
3.4 Conversion Option............................................. 22
3.5 Currency Fluctuations, etc.................................... 23
SECTION 4. GENERAL PROVISIONS............................................. 24
4.1 Evidence of Debt.............................................. 24
4.2 Repayment of Loans............................................ 24
4.3 Interest Rate and Payment Dates............................... 24
4.4 Lending Procedures............................................ 25
4.5 Facility Fees................................................. 26
4.6 Termination or Reduction of Commitments....................... 26
4.7 Optional Prepayments.......................................... 26
4.8 Pro Rata Treatment and Payments............................... 27
4.9 Computation of Interest and Fees.............................. 27
4.10 Increased Costs.............................................. 28
4.11 Changes in Capital Requirements.............................. 29
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......................... 34
5.5 Government Authorization...................................... 34
5.6 Federal Regulations........................................... 34
5.7 Enforceable Obligations....................................... 34
5.8 No Material Litigation........................................ 34
5.9 Taxes......................................................... 34
5.10 ERISA........................................................ 35
5.11 Investment Company Act; Other Regulations.................... 35
<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.......................................... 37
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 Fundamental Change.............................. 38
8.3 Limitation on Liens........................................... 39
8.4 Additional Covenants.......................................... 40
SECTION 9. EVENTS OF DEFAULT.............................................. 41
SECTION 10. THE AGENTS.................................................... 44
10.1 Appointment.................................................. 44
10.2 Delegation of Duties......................................... 44
10.3 Exculpatory Provisions....................................... 44
10.4 Reliance by Agents and CASC.................................. 44
10.5 Notice of Default............................................ 45
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......................... 48
11.5 Reinstatement................................................ 48
11.6 Payments..................................................... 48
11.7 Judgments Relating to Guarantee.............................. 49
11.8 Independent Obligations...................................... 49
SECTION 12. MISCELLANEOUS................................................. 50
12.1 Amendments and Waivers....................................... 50
12.2 Notices...................................................... 50
12.3 Clearing Accounts............................................ 51
12.4 No Waiver; Cumulative Remedies............................... 52
- ii -
<PAGE>
Page
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............................................. 54
12.9 Adjustments.................................................. 54
12.10 New Banks; Commitment Increases; Commitment Reallocations... 55
12.11 Tax Forms................................................... 56
12.12 Counterparts................................................ 56
12.13 Governing Law............................................... 57
12.14 Submission to Jurisdiction; Waivers......................... 57
12.15 Integration................................................. 57
12.16 Judgments Relating to CCCL.................................. 57
12.17 WAIVERS OF JURY TRIAL....................................... 58
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 April 26,
1996 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, CREDIT
SUISSE, FIRST CHICAGO NBD CORPORATION, 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).
"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.
<PAGE>
2
"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
Bankers' 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%: 0.1500% 0.1900% 0.2500% 0.3250% 0.5500%
Greater than 50%: 0.2750% 0.3150% 0.3750% 0.4500% 0.6750%
</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.
<PAGE>
3
"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 365;
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": the upper limit of the Bank of Canada operating
band for overnight loans as announced from time to time.
"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 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
<PAGE>
4
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 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.
<PAGE>
5
"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 Facility Fee": as defined in Section 4.5(b).
"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).
"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
<PAGE>
6
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 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
<PAGE>
7
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.
"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).
<PAGE>
8
"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.
"Designated Canadian Commitment Amount": with respect to each
C$ Bank at a particular time, the Designated Canadian Percentage of
such C$ Bank's Canadian Commitment then in effect; provided, that in
the event that C$ Loans shall be outstanding after the Canadian
Commitments shall have been terminated, the "Designated Canadian
Commitment Amount" of such C$ Bank, on any day, shall be deemed to
equal the Designated Canadian Percentage of the aggregate principal
amount of the C$ Loans (US$ Equivalent) made by such C$ Bank
outstanding on such day.
"Designated Canadian Percentage": a percentage which may be
specified by each C$ Bank, and may be changed from time to time, by
written notice to each Facility Borrower and each Agent; provided,
that if no such percentage has been so specified, such percentage
shall be deemed to be zero. Each such notice shall, unless otherwise
agreed by each Facility Borrower, be furnished within a 30-day period
commencing on the Effective Date or commencing on an anniversary of
the Effective Date.
"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, April 26, 1996.
"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
<PAGE>
9
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 Eurodollar
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 Long
Term Revolving Credit Agreement dated as of May 1, 1995 among CFC,
CCCL, the banks parties thereto, Royal, as Canadian Administrative
Agent, and Chemical, as Administrative Agent and (b) the Short Term
Revolving Credit Agreement dated as of May 1, 1995 among CFC, CCCL,
the banks parties thereto, Royal, as Canadian Administrative Agent,
and Chemical, as Administrative Agent.
"Facility Borrowers": the collective reference to CFC and CCCL.
"Facility Fee": any U.S. Facility Fee or Canadian Facility Fee.
"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 0.0500%
Level II Status 0.0600%
Level III Status 0.1000%
Level IV Status 0.1250%
Level V Status 0.2000%
</TABLE>
"Federal Reserve Board": the Board of Governors of the Federal
Reserve System of the United States.
"Final Date": the later of (a) the Termination Date and (b) the
date on which all of the Loans shall have been paid in full.
"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, 1995 applied consistently with those used in compiling the
financial statements included in the 1995 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.
"Initial Offered Canadian Commitment Amount": with respect to
each C$ Bank, the amount specified opposite such Bank's name on
Schedule I in the column captioned "Initial Offered Canadian
Commitment Amount", which amount shall equal 25% of the aggregate
Canadian commitment amount offered by such Bank in connection with the
initial syndication of the Canadian Commitments and the initial
syndication of the "Canadian Commitments" under the Long Term
Revolving Credit Agreement.
"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;
<PAGE>
12
(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.
"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 April 26, 1996, 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
$100,000,000 (or the equivalent thereof in any other currency).
<PAGE>
13
"Maturity Date": the date which is the second anniversary of
the Termination Date.
"Moody's": Moody's Investors Service, Inc. and its successors.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New Bank": as defined in Section 12.10(a).
"1995 Annual Report": CFC's annual report to stockholders for
the fiscal year ended December 31, 1995.
"Other Taxes": as defined in Section 4.13(a).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor
corporation.
"Person": an individual, a partnership, a corporation
(including a business trust), a joint stock company, a trust, an
unincorporated association, a joint venture or other entity or a
government or any agency or political subdivision thereof.
"Plan": any pension plan which is covered by Title IV of ERISA
and in respect of which CFC or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Prohibited Transaction": any "prohibited transaction" as
defined in Section 406 of ERISA or Section 4975 of the Code.
"Rating Agencies": the collective reference to D&P, Fitch,
Moody's and S&P.
"Real Estate Business": the acquisition, development, leasing,
financing, management, maintenance and disposition of real property,
including, without limitation, automotive dealership facilities and
dealership site control arrangements.
"Reference Banks": the collective reference to the Eurodollar
Reference Banks, the Schedule I C$ 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.
<PAGE>
14
"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 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 Services, 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
<PAGE>
15
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.
"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$ Bank Net Combined Commitment": with respect to each US$
Bank, an amount equal to such US$ Bank's US$ Bank Combined Commitment
minus, in the case of each US$ Bank that has a Related C$ Bank, such
Related C$ Bank's Designated Canadian Commitment Amount.
<PAGE>
16
"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.
"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. Facility Fee": as defined in Section 4.5(a).
"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
<PAGE>
17
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.
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
<PAGE>
18
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 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 ("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
<PAGE>
19
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 (i) is (x) organized under the laws of the United States or any
State thereof or (y) 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 and
(ii) is subject to actual Reserve Requirements in respect of its Eurodollar
Loans. Each US$ Bank agrees to notify the Administrative Agent promptly upon
becoming 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
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20
(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$100,000 or any integral multiple thereof.
(iv) Term. Bankers' Acceptances shall be issued and shall
mature on a Business Day. Each Bankers' Acceptance shall have a term
of at least 30 days and not more than 365 days excluding days of grace
and shall mature on or before the Maturity Date and shall be in form
and substance reasonably satisfactory to each C$ 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. In addition, CCCL hereby appoints each C$ Bank
as its attorney to sign and endorse on its behalf, in handwriting or
by facsimile or mechanical signature as and when deemed necessary by
such C$ Bank, blank forms of Bankers' Acceptances. CCCL recognizes and
agrees that all Bankers' Acceptances signed and/or endorsed on its
behalf by a C$ Bank shall bind CCCL as fully and effectually as if
signed in the handwriting of and duly issued by the proper signing
officers of CCCL. 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
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21
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.
(ix) Purchase of Bankers' Acceptances. On the relevant
Borrowing Date, each C$ Bank shall purchase 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'
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22
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:
(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
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23
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
(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 (which reduction, in the case of Bankers' Acceptances, may be effected
by cash collateralization thereof on terms reasonably satisfactory to each C$
Bank) 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
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24
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.
(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 (or such earlier date as may be established
pursuant to Section 9).
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
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25
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).
(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 Excess 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 make its share of such borrowing
available to such Agent forthwith on demand, 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.
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26
4.5 Facility Fees. (a) CFC agrees to pay to the Administrative
Agent, for the account of each US$ Bank, in Dollars, a facility fee (the "U.S.
Facility Fee") for each day from and including the Effective Date to but
excluding 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 Net
Combined Commitment of such US$ Bank in effect on such day.
(b) CCCL agrees to pay to the Canadian Administrative Agent,
for the account of each relevant C$ Bank, in Dollars, a facility fee (the
"Canadian Facility Fee") for each day from and including the Effective Date to
but excluding 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 Designated
Canadian Commitment Amount of such C$ Bank in effect on such day.
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 C$1,000,000 in excess thereof (in the
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27
case of C$ 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. 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 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. The relevant Agent shall promptly distribute such payments to each Bank
entitled to receive a portion thereof in like funds as received. 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 is expressed herein and shall be
calculated on the basis of
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28
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 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;
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29
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), 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
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30
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 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
<PAGE>
31
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.
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 by 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
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32
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.
(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 or 4.13 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
<PAGE>
33
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 or
4.13, as the case may be, and (ix) 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.
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, 1995, 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, 1996, 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, 1996, 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, 1995 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
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34
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.
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).
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35
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, 1995, 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.
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
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36
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:
(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
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37
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:
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
<PAGE>
38
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.
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 8.2.
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 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
<PAGE>
39
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 confirmation that it is a resident of Canada for
purposes of the Income Tax Act (Canada), 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).
8.3 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;
<PAGE>
40
(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;
(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 8.3, 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 8.3(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.
8.4 Additional Covenants. At any time after the occurrence of a
Change of Control:
<PAGE>
41
(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 (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 8.4(c).
(b) Minimum Equity. CFC shall not permit Equity
(determined without giving effect to any redemption of preferred stock
of CFC made pursuant to Section 8.4(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. In addition, CFC shall not, and shall not permit any
Subsidiary to, engage in any transaction with any CFC 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 CFC
Affiliates. As used in this Section 8.4(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:
<PAGE>
42
(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, 8.2 or 8.4; 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
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43
(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 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.
<PAGE>
44
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 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
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45
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 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 such 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$
<PAGE>
46
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.
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 30
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 30-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
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47
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 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
<PAGE>
48
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
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.
<PAGE>
49
(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, an amount that would be equal to the amount
that such Bank would have received under the guarantee contained in this
Section 11 had no such withholding or deduction been required calculated after
taking into account all applicable Taxes and Other Taxes. 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 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.
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50
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 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 with its ratable share of
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52
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 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
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53
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 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 $8,000,000 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 $8,750,000 (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 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
<PAGE>
54
waiver, amendment or supplement directly affects such participant and (3) a
participating interest of at least $8,000,000 shall be sold pursuant to any
such participation (unless, at CFC's discretion, a lesser amount is mutually
agreed upon between CFC and such Bank).
(b) Nothing herein shall prohibit any US$ 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.
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
<PAGE>
55
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.
(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 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 Initial Offered
Canadian Commitment Amount.
<PAGE>
56
(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. 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 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 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.
<PAGE>
57
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.
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$, CCCL
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Applicable Creditor
<PAGE>
58
against such loss, provided, that if the amount of C$ 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.
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\ D.M. Cantwell
------------------------------------
Title: Vice President and Treasurer
CHRYSLER CREDIT CANADA LTD.
By:\s\ D.M. Cantwell
------------------------------------
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\ David W. Cox
------------------------------------
Title: Senior Manager
<PAGE>
SCHEDULE I TO
SHORT TERM REVOLVING CREDIT AGREEMENT
<TABLE>
<CAPTION>
Initial Offered
Canadian Canadian Combined
Banks U.S. Commitment Commitment Commitment Amount Commitment
- ----- --------------- ---------- ----------------- ----------
<S> <C> <C> <C> <C>
Chemical Bank(1) ................... $ 48,750,000 $ 8,750,000 $ 8,750,000 $ 57,500,000
The Chase Manhattan Bank, N.A ...... 50,000,000 -- -- 50,000,000
Royal Bank of Canada ............... 55,000,000 26,250,000 100,000,000 81,250,000
ABN AMRO Bank N.V.(2) .............. 65,000,000 6,250,000 6,250,000 71,250,000
Bank of America NT & SA(3) ......... 62,500,000 8,750,000 8,750,000 71,250,000
The Bank of New York ............... 71,250,000 -- -- 71,250,000
The Bank of Nova Scotia ............ 46,250,000 25,000,000 87,500,000 71,250,000
Banque Nationale de Paris,
Chicago Branch(4) ................. 67,500,000 3,750,000 3,750,000 71,250,000
Canadian Imperial Bank of Commerce . 46,250,000 25,000,000 87,500,000 71,250,000
Credit Suisse(5) ................... 63,750,000 7,500,000 7,500,000 71,250,000
The Long-Term Credit Bank of Japan,
Ltd. New York Branch ............. 71,250,000 -- -- 71,250,000
Morgan Guaranty Trust Company of
New York(6) ...................... 67,500,000 3,750,000 3,750,000 71,250,000
NationsBank, N.A ................... 71,250,000 -- -- 71,250,000
NBD Bank ........................... 71,250,000 -- -- 71,250,000
Societe Generale(7) ................ 62,500,000 8,750,000 8,750,000 71,250,000
The Toronto-Dominion Bank .......... 46,250,000 25,000,000 87,500,000 71,250,000
Commerzbank Aktiengesellschaft Grand
Cayman Branch .................... 50,000,000 -- -- 50,000,000
Credit Lyonnais Chicago Branch(8) .. 40,000,000 10,000,000 10,000,000 50,000,000
The Fuji Bank, Limited ............. 50,000,000 -- -- 50,000,000
Swiss Bank Corporation, New York
Branch(9) ........................ 43,750,000 6,250,000 6,250,000 50,000,000
Union Bank of Switzerland
(Chicago Branch)(10) ............. 43,750,000 6,250,000 6,250,000 50,000,000
Bank of Montreal ................... 18,750,000 12,500,000 37,500,000 31,250,000
Banque Paribas ..................... 31,250,000 -- -- 31,250,000
Comerica Bank ...................... 31,250,000 -- -- 31,250,000
The Dai-Ichi Kangyo Bank, Ltd.(11) . 28,750,000 2,500,000 2,500,000 31,250,000
Fleet National Bank ................ 31,250,000 -- -- 31,250,000
The Sakura Bank, Limited ........... 31,250,000 -- -- 31,250,000
The Sanwa Bank, Ltd., Chicago Branch 31,250,000 -- -- 31,250,000
Bayerische Vereinsbank AG .......... 25,000,000 -- -- 25,000,000
Kredietbank N.V .................... 25,000,000 -- -- 25,000,000
Mellon Bank N.A.(12)................ 22,500,000 2,500,000 2,500,000 25,000,000
National Westminster Bank Plc(13) .. 22,500,000 2,500,000 2,500,000 25,000,000
PNC Bank, N.A ...................... 25,000,000 -- -- 25,000,000
Banca Nazionale Del Lavoro S.p.A. -
New York Branch .................. 18,750,000 -- -- 18,750,000
<FN>
- --------
1 Related C$ Bank: Chemical Bank of Canada
2 Related C$ Bank: ABN AMRO Bank Canada
3 Related C$ Bank: Bank of America Canada
4 Related C$ Bank: Banque Nationale de Paris (Canada)
5 Related C$ Bank: Credit Suisse Canada
6 Related C$ Bank: J.P. Morgan Canada
7 Related C$ Bank: Societe Generale (Canada)
8 Related C$ Bank: Credit Lyonnais Canada
9 Related C$ Bank: Swiss Bank Corporation
10 Related C$ Bank: Union Bank of Switzerland (Canada)
11 Related C$ Bank: Dai-Ichi Kangyo Bank (Canada)
12 Related C$ Bank: Mellon Bank Canada
13 Related C$ Bank: National Westminster Bank of Canada
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
Initial Offered
Canadian Canadian Combined
Banks U.S. Commitment Commitment Commitment Amount Commitment
- ----- --------------- ---------- ----------------- ----------
<S> <C> <C> <C> <C>
Caisse Nationale de Credit Agricole . 18,750,000 -- -- 18,750,000
CARIPLO - Cassa di Risparmio delle
Provincie Lombarde S.p.A .......... 18,750,000 -- -- 18,750,000
The Mitsui Trust and Banking Company,
Limited ........................... 18,750,000 -- -- 18,750,000
Banca Commerciale Italiana(14) ...... 10,000,000 2,500,000 2,500,000 12,500,000
Banca Di Roma - Chicago Branch ...... 12,500,000 -- -- 12,500,000
Bankers Trust Company ............... 12,500,000 -- -- 12,500,000
Bank of Tokyo - Mitsubishi Ltd.......
New York Branch ................... 12,500,000 -- -- 12,500,000
Barclays Bank PLC ................... 12,500,000 -- -- 12,500,000
CoreStates Bank, N.A ................ 12,500,000 -- -- 12,500,000
Istituto Bancario San Paolo di
Torino SpA ........................ 12,500,000 -- -- 12,500,000
National Bank of Canada ............. 6,250,000 6,250,000 6,250,000 12,500,000
The Northern Trust Company .......... 12,500,000 -- -- 12,500,000
Wells Fargo Bank, N.A ............... 12,500,000 -- -- 12,500,000
The Yasuda Trust & Banking Co., Ltd. 12,500,000 -- -- 12,500,000
Banca CRT S.p.A ..................... 8,750,000 -- -- 8,750,000
Credito Italiano SpA ................ 8,750,000 -- -- 8,750,000
The First National Bank of Maryland . 8,750,000 -- -- 8,750,000
Gulf International Bank B.S.C ....... 8,750,000 -- -- 8,750,000
Michigan National Bank .............. 8,750,000 -- -- 8,750,000
National City Bank .................. 8,750,000 -- -- 8,750,000
Seattle-First National Bank ......... 8,750,000 -- -- 8,750,000
Society National Bank ............... 8,750,000 -- -- 8,750,000
United States National Bank of Oregon 8,750,000 -- -- 8,750,000
Total ............................. $1,800,000,000 $ 200,000,000 $ 486,250,000 $2,000,000,000
<FN>
- --------
14 Related C$ Bank: Banca Commerciale Italiana of Canada
</TABLE>
<PAGE>
SCHEDULE II TO
SHORT TERM REVOLVING CREDIT AGREEMENT
None
<PAGE>
EXHIBIT A TO
SHORT TERM REVOLVING CREDIT AGREEMENT
[FORM OF ADDENDUM]
ADDENDUM TO SHORT TERM REVOLVING CREDIT AGREEMENT
The undersigned Bank (a) agrees to all of the provisions of the
Short Term Revolving Credit Agreement dated as of April 26, 1996 among
Chrysler Financial Corporation ("CFC"), Chrysler Credit Canada Ltd. ("CCCL"),
the Banks parties thereto, the Managing Agents parties thereto, Royal Bank of
Canada, as Canadian Administrative Agent, and Chemical Bank, as Administrative
Agent (as the same may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), and (b) becomes a party thereto, as a
Bank and, in each case to the extent indicated on Schedule I to the Credit
Agreement, a US$ Bank and/or a C$ Bank, with an obligation (i) in the case of
a US$ Bank, to make U.S. R/C Loans to CFC and (ii) in the case of a C$ Bank,
to make C$ R/C Loans to and accept Bankers' Acceptances from CCCL, provided,
that, after giving effect thereto, as applicable, (x) the aggregate principal
amount of a US$ Bank's U.S. R/C Loans shall not exceed such US$ Bank's U.S.
Commitment as set forth opposite the undersigned Bank's name on said Schedule
I and (y) the aggregate principal amount (US$ Equivalent) of a C$ Bank's C$
R/C Loans and Bankers' Acceptances shall not exceed such C$ Bank's Canadian
Commitment as set forth opposite the undersigned Bank's name on said Schedule
I, in each case as the amount of such U.S. Commitment or Canadian Commitment,
as applicable, may be changed from time to time as provided in the Credit
Agreement. Capitalized terms defined in the Credit Agreement shall have their
respective defined meanings herein.
1. Address(es) for notices for the purposes of Section 12.2 of
the Credit Agreement:
Address(es) for Notices:
______________________________ ______________________________
______________________________ ______________________________
Attention: Attention:
Telecopy Number: Telecopy Number:
2. For US$ Banks only:
Clearing Account No.: _________________
Name of Automated Clearing House Member
at which Clearing Account is Located: _______________________________
Name of Bank:__________________________________
As of April 26, 1996 By ____________________________________________
Title:
<PAGE>
EXHIBIT B TO
SHORT TERM REVOLVING CREDIT AGREEMENT
[FORM OF CLOSING CERTIFICATE]
CLOSING CERTIFICATE
Pursuant to Sections 6.1(b), (c) and (d) of the Short Term
Revolving Credit Agreement dated as of April 26, 1996 (the "Credit Agreement";
unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement)
among CHRYSLER FINANCIAL CORPORATION ("CFC"), CHRYSLER CREDIT CANADA LTD.
("CCCL"), the Banks parties thereto, the Managing Agents parties thereto,
ROYAL BANK OF CANADA, as Canadian Administrative Agent, and CHEMICAL BANK, as
Administrative Agent, the undersigned ________ of [CFC] [CCCL] hereby
certifies as follows:
1. The representations and warranties of [CFC] [CCCL] contained
in the Credit Agreement or in any certificate, document or financial
or other statement furnished by or on behalf of [CFC] [CCCL] pursuant
to or in connection with the Credit Agreement are true and correct in
all material respects on and as of the date hereof with the same
effect as if made on the date hereof except for representations and
warranties stated to relate to a specific earlier date, in which case
such representations and warranties were true and correct in all
material respects as of such earlier date;
2. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to any Loans
to be made on the date hereof;
3. ____________________ is and at all times since
_____________________ 19__, has been the duly elected and qualified
[Assistant] Secretary of [CFC] [CCCL] and the signature set forth on
the signature line for such officer below is such officer's true and
genuine signature;
and the undersigned [Assistant] Secretary of [CFC] [CCCL] hereby certifies
as follows:
4. There are no liquidation or dissolution proceedings pending
or to my knowledge threatened against [CFC] [CCCL], nor to my
knowledge has any other event occurred affecting or threatening the
corporate existence of [CFC] [CCCL];
5. [CFC] [CCCL] is a corporation duly organized, validly
existing and in good standing under the laws of [Michigan] [Canada];
6. Attached hereto as Exhibit A is a complete and correct copy
of resolutions duly adopted by the Board of Directors (or a duly
authorized committee thereof) of [CFC] [CCCL] on _________, 19__; such
resolutions have not in any way been amended, modified, revoked or
rescinded and have been in full force and effect since their adoption
to and including the date hereof and are now in full force and effect;
such resolutions are the only corporate proceedings of [CFC] [CCCL]
now in force relating to or affecting the matters referred to therein;
7. Attached hereto as Exhibit B is a complete and correct copy
of the by-laws of [CFC] [CCCL] as in effect at all times since
_________________, 19__ to and including the date hereof; and attached
hereto as Exhibit C is a true and complete copy of the certificate of
<PAGE>
2
incorporation of [CFC] [CCCL] as in effect at all times since
___________________, 19__ to and including the date hereof; and
8. The following persons are now duly elected and qualified
officers of [CFC] [CCCL] holding the offices indicated next to their
respective names below, and such officers have held such offices with
[CFC] [CCCL] at all times since ________________, 19__ to and
including the date hereof, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such
officers, and each of such officers is duly authorized to execute and
deliver on behalf of [CFC] [CCCL] the Credit Agreement and any
certificate or other document to be delivered by [CFC] [CCCL] pursuant
to the Credit Agreement:
Name Office Signature
---- ------ ---------
_____________________ [________] ____________________
_____________________ [Assistant] Secretary ____________________
IN WITNESS WHEREOF, the undersigned have hereto set our names.
_____________________ _____________________
Title: [___________] Title: [Assistant] Secretary
Date: April 26, 1996
<PAGE>
EXHIBIT C-1 TO
SHORT TERM
REVOLVING CREDIT AGREEMENT
[FORM OF OPINION OF SIMPSON THACHER & BARTLETT]
April 26, 1996
To: Chemical Bank, as administrative agent
under the Revolving Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
The Banks listed on Schedule I hereto
Re: The Short Term Revolving Credit Agreement, dated as
of April 26, 1996 (the "Credit Agreement"), among
Chrysler Financial Corporation, a Michigan
corporation ("CFC"), Chrysler Credit Canada Ltd., a
Canadian corporation ("CCCL"; together with CFC,
the "Facility Borrowers"), the Banks parties
thereto, the Managing Agents parties thereto, Royal
Bank of Canada, as Canadian Administrative Agent,
and Chemical Bank, as Administrative Agent.
Ladies and Gentlemen:
We have acted as counsel to the Administrative Agent in
connection with the execution and delivery of the Credit Agreement.
This opinion is delivered to you pursuant to Section
6.1(e)(i) of the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
In arriving at the opinion expressed below, we have examined
(a) a counterpart of the Credit Agreement, signed by CFC, CCCL, the Canadian
Administrative Agent and the Administrative Agent and (b) such documents as we
have deemed necessary or appropriate for the purposes of this opinion.
In such examination, we have assumed the genuineness of all
signatures, the authenticity, regularity and completeness of all documents
submitted to us as originals, the completeness of all documents submitted to
us as certified, conformed or photostatic copies and the conformity of such
documents to the original documents.
We have also assumed that the Credit Agreement has been duly
authorized, executed and delivered by each Facility Borrower; that each
Facility Borrower is duly incorporated and validly existing under the laws of
its jurisdiction of incorporation and has the corporate power and authority to
execute, deliver and perform its obligations under the Credit Agreement; that
neither Facility Borrower is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended; that the execution, delivery and
performance by each Facility Borrower of the Credit Agreement has
<PAGE>
-2- April 26, 1996
been duly authorized by all necessary corporate action on the part of each
Facility Borrower, does not contravene the certificate of incorporation,
by-laws or similar organizational documents of either Facility Borrower, does
not violate, or require any consent not obtained under, any applicable law or
regulation or any order, writ, injunction or decree of any court or other
Governmental Authority binding upon either Facility Borrower and does not
violate, or require any consent not obtained under, any contractual obligation
applicable to or binding upon either Facility Borrower; and that the Credit
Agreement constitutes a valid and legally binding obligation of the Canadian
Administrative Agent, the Managing Agents and the Banks.
Based upon the foregoing, and subject to the qualifications
and comments set forth below, we are of the opinion that, insofar as the law
of the State of New York is concerned, the Credit Agreement constitutes a
valid and legally binding obligation of each Facility Borrower, enforceable
against each Facility Borrower in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing,
except that we express no opinion as to (a) Section 12.14(b) of the Credit
Agreement insofar as it relates to an action brought in the United States
District Court for the Southern District of New York and note that such
matters may be raised by such court; (b) any indemnification obligations of
the Facility Borrowers under the Credit Agreement to the extent such
obligations might be deemed to be inconsistent with public policy; (c) any
provision of the Credit Agreement that purports to establish an evidentiary
standard for determinations by the Banks or either Agent; (d) any setoff right
contained in Section 12.8 or 12.9 of the Credit Agreement authorizing any Bank
to set off and apply deposits at any time held, and any other indebtedness at
any time owing, by such Bank to or for the account of any party against any
participation transferred to or by such Bank; or (e) Sections 11.7 and 12.16
of the Credit Agreement.
We note that (i) a New York statute provides that with
respect to a foreign currency obligation, a court of the State of New York
shall render a judgment or decree in such foreign currency and such judgment
or decree shall be converted into currency of the United States at the rate of
exchange prevailing on the date of entry of such judgment or decree and (ii)
with respect to a foreign currency obligation, a United States Federal court
in New York may award judgment in United States dollars, provided that we
express no opinion as to the rate of exchange such court would apply.
We are members of the Bar of the State of New York and we do
not express any opinion herein concerning any law other than the law of the
State of New York.
This opinion has been rendered solely for your benefit in
connection with the Credit Agreement and the transactions contemplated thereby
and may not be relied upon by you for any other purpose, or relied upon by any
other person, firm or corporation without our prior written consent or
furnished to any other person, firm or corporation other than any assignee or
participant under the Credit Agreement or any bank examiner or other
regulatory authority without our prior written consent.
Very truly yours,
SIMPSON THACHER & BARTLETT
<PAGE>
SCHEDULE I
THE BANKS
<PAGE>
EXHIBIT C-2
TO SHORT TERM
REVOLVING CREDIT AGREEMENT
[FORM OF OPINION OF GENERAL COUNSEL
of
CFC]
April 26, 1996
To: Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
The Banks parties to the Credit Agreement referred to below
Dear Sirs:
I am General Counsel of Chrysler Financial Corporation, a
Michigan corporation ("CFC"), and have acted as counsel to CFC in connection
with the execution and delivery of the Short Term Revolving Credit Agreement,
dated as of April 26, 1996 (the "Credit Agreement"), among CFC, Chrysler
Credit Canada Ltd. ("CCCL"; together with CFC, the "Facility Borrowers"), the
Banks parties thereto, the Managing Agents thereto, Royal Bank of Canada, as
Canadian Administrative Agent, and Chemical Bank, as Administrative Agent.
This opinion is delivered to you pursuant to Section 6.1(e)(ii) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth in the Credit Agreement, unless
otherwise defined herein.
In connection with this opinion, I, or members of my staff,
have examined executed copies (or telecopies of signature pages) of the Credit
Agreement and such corporate documents and records of the Facility Borrowers,
and certificates of public officials and officers of the Facility Borrowers,
and such other documents, as I, or members of my staff, have deemed necessary
or appropriate for the purposes of this opinion. For the purposes of this
opinion, I have assumed (i) the genuineness of all signatures of, and the
authority of, Persons signing the Credit Agreement on behalf of parties
thereto other than the Facility Borrowers, (ii) the authenticity of all
documents submitted to me as originals, (iii) the conformity to authentic
original documents of all documents submitted to me as certified, conformed or
photostatic copies and (iv) the due authorization, execution and delivery of
the Credit Agreement by the parties thereto other than the Facility Borrowers.
My opinions expressed herein are limited to the laws of the
State of Michigan, the State of New York, the General Corporation Law of the
State of Delaware, and the Federal laws of the United States of America (the
"Specified Laws"), and I do not express any opinion herein concerning any
other law (including, without limitation, any law of any political subdivision
of the foregoing States). For the purposes of this opinion I have assumed that
the laws of the State of New York are identical to the laws of the State of
Michigan.
Based upon the foregoing and subject to the qualifications
set forth herein, I am of the opinion that:
<PAGE>
2
1. CFC is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Michigan and 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 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.
2. The Credit Agreement has been duly executed and delivered
on behalf of CFC. The execution, delivery and performance by each
Facility Borrower of the Credit Agreement (a) are within the
corporate powers of CFC, (b) have been duly authorized by all
necessary corporate action on the part of CFC, and (c) do not
contravene (i) the charter or by-laws of CFC, (ii) any law, rule, or
regulation under the Specified Laws presently in effect which affects
or binds either Facility Borrower or any of its respective properties
(including, without limitation, Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System) or, to the best of
my knowledge, any order, writ, judgment, injunction, decree,
determination or award presently in effect which affects or binds
either Facility Borrower or any of its respective properties or (iii)
to the best of my knowledge, any Contractual Obligation to which
either Facility Borrower is a party; except to the extent that such
contravention, in case of either clause (ii) or (iii), 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 either Facility Borrower to fulfill its obligations under
the Credit Agreement or on the rights and remedies of either Agent or
any of the Banks thereunder.
3. No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority under the
Specified Laws is required to be obtained or made by either Facility
Borrower for the due execution, delivery and performance by such
Facility Borrower of the Credit Agreement.
4. To the best of my knowledge after due inquiry, no
litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or threatened by or against CFC
or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to the Credit Agreement, 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. The Credit Agreement constitutes the legal, valid and
binding obligation of each Facility Borrower, enforceable against
each Facility Borrower in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
6. Neither 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.
7. None of the Administrative Agent, the Canadian
Administrative Agent, the Managing Agents and the Banks will become
subject to any income, franchise or other tax
<PAGE>
3
imposed by a Governmental Authority of the State of Michigan solely
by reason of the transactions contemplated by the Credit Agreement.
I express no opinion as to (a) the effect of any laws other
than the Specified Laws which limit the rates of interest legally chargeable
or collectible; (b) any obligation of any party to the Credit Agreement to
indemnify other Persons to the extent such obligation might be deemed to be
inconsistent with public policy; (c) any setoff right contained in Section
12.8 of the Credit Agreement authorizing any Bank to set off and apply
deposits at any time held, and any other indebtedness at any time owing, by
such Bank to or for the account of any party against any participation
transferred to or by such Bank; (d) any agreement to pay interest on interest;
(e) Section 12.14(b) of the Credit Agreement insofar as it relates to an
action brought in the United States District Court for the Southern District
of New York and note that such matters may be raised by such court; or (f) any
provision of the Credit Agreement that purports to establish an evidentiary
standard for determinations by the Banks.
This opinion is given as of the date hereof and I undertake
no obligation to notify you of any changes in law or fact occurring after the
date hereof. This opinion is furnished to you solely in connection with the
execution and delivery of the Credit Agreement and may not be furnished to any
other person, firm or corporation other than any assignee or participant under
the Credit Agreement or any bank examiner or other regulatory authority
without my prior written consent and may not be relied upon by any one other
than you, the other counsel providing legal opinions to you pursuant to
Section 6.1(e) of the Credit Agreement, and by you and such other counsel only
in connection with the execution and delivery of the Credit Agreement.
Very truly yours,
<PAGE>
EXHIBIT C-3
TO SHORT TERM
REVOLVING CREDIT AGREEMENT
[FORM OF OPINION OF CANADIAN COUNSEL
to
CCCL]
April 26, 1996
To: Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
The Banks parties to the Credit Agreement referred to below
Dear Sirs:
We have acted as Canadian Counsel to Chrysler Credit Canada
Ltd., a Canada corporation ("CCCL") in connection with the execution and
delivery of the Short Term Revolving Credit Agreement, dated as of April 26,
1996 (the "Credit Agreement"), among Chrysler Financial Corporation ("CFC",
together with CCCL, the "Facility Borrowers"), CCCL, the Banks parties
thereto, the Managing Agents parties thereto, Royal Bank of Canada, as
Canadian Administrative Agent, and Chemical Bank, as Administrative Agent.
This opinion is delivered to you pursuant to Section 6.1(e)(iii) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth in the Credit Agreement, unless
otherwise defined herein.
In connection with this opinion, we have examined executed
copies (or facsimile transmitted signature pages) of the Credit Agreement and
such corporate documents and records of CCCL, and certificates of public
officials and officers of CCCL, and such other documents as we have deemed
necessary or appropriate for the purposes of this opinion. For the purposes of
this opinion, we have assumed (i) the genuineness of all signatures of, and
the authority of, Persons signing the Credit Agreement on behalf of parties
thereto other than CCCL, (ii) the authenticity of all documents submitted to
us as originals, (iii) the conformity to authentic original documents of all
documents submitted to us as certified, conformed, facsimile or photostatic
copies and (iv) the due authorization, execution and delivery of the Credit
Agreement by the parties thereto other than CCCL.
Except as indicated below in respect of the opinion
contained in paragraph 1, the opinions expressed herein are limited to the
laws of the Province of Ontario and the laws of Canada applicable therein (the
"Specified Laws"), and we do not express any opinion herein concerning any
other law (including, without limitation, any law of any political subdivision
of the Province of Ontario).
Based upon the foregoing and subject to the qualifications
set forth herein, we are of the opinion that:
<PAGE>
2
1. CCCL is a corporation duly incorporated and validly existing
under the Canada Business Corporations Act and is duly
qualified to do business 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 to the extent that the
failure to be so qualified would not have a material adverse
effect on the business, operations or financial condition of
CFC and its Subsidiaries taken as a whole.
2. The Credit Agreement has been duly executed on behalf of
CCCL. The execution, delivery and performance by CCCL of the
Credit Agreement (a) are within the corporate powers of
CCCL, (b) have been duly authorized by all necessary
corporate action on the part of CCCL, and (c) do not
contravene (i) the charter or by-laws of CCCL, (ii) any law,
rule, or regulation under the Specified Laws presently in
effect which affects or binds CCCL or any of its properties
or, to the best of our knowledge without having made any
enquiry as to the existence thereof, any order, writ,
judgment, injunction, determination or award presently in
effect which affects or binds CCCL or any of its properties
or (iii) to the best of our knowledge without having made an
enquiry as to the existence thereof, any Contractual
Obligation to which CCCL is a party; except to the extent
that such contravention, in case of either clause (ii) or
(iii), 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 CCCL to
fulfill its obligations under the Credit Agreement.
3. No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority under
the Specified Laws is required to be obtained or made by
either Facility Borrower for the due execution, delivery and
performance by such Facility Borrower of the Credit
Agreement.
4. To the best of our knowledge after due inquiry, no
litigation or proceeding of or before any arbitrator or
Governmental Authority of Canada or the Province of Ontario
is pending by or against CCCL or against any of its
properties or revenues (a) with respect to the Credit
Agreement, 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. None of the Managing Agents, the Canadian Administrative
Agent or the C$ Banks will be liable for, and CCCL will not
be required to deduct or withhold, any Canadian Withholding
Tax on or from any amounts paid or credited to a C$ Bank by
CCCL on account of C$ Loans (including interest and
Acceptance Fees) or Canadian Facility Fees under the Credit
Agreement. None of the Administrative Agent, the Managing
Agents or the Banks (other than the C$ Banks) will be
subject to any Taxes on amounts paid or credited to a C$
Bank by CCCL on account of C$ Loans (including interest and
Acceptance Fees) or Canadian Facility Fees under the Credit
Agreement.
The term "Taxes" shall mean all taxes, charges, fees,
levies, imports and other assessments, including all income,
sales, use, goods and services, value added, capital,
capital gains, alternative, net worth, transfer, profits,
withholding, payroll, employer health, excise, real property
and personal property taxes, and any other taxes, customs
duties, fees, assessments or other similar charges in the
nature of a tax together with
<PAGE>
3
any installments with respect thereto and any interest,
fines and penalties, imposed by any Governmental Authority
of Canada or of the Province of Ontario.
The term "Canadian Withholding Tax" shall mean all taxes
imposed under Part XIII of the Income Tax Act (Canada) and
any similar taxes imposed under the Corporations Tax Act
(Ontario).
6. In any action or proceeding arising out of or relating to
the Credit Agreement in any court of competent jurisdiction
in the Province of Ontario, such court would recognize and
give effect to the provisions of Section 12.13 of the Credit
Agreement wherein the respective parties thereto agree that
the Credit Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New
York and, to the extent specifically pleaded and proved as a
fact by expert evidence, such court would apply the laws of
the State of New York to all issues which under conflict of
laws rules in effect in the Province of Ontario are
characterized to be contract issues, except that any such
court (i) will apply those laws of the Province of Ontario
which such court characterizes as procedural and will not
apply those laws of the State of New York which such court
characterizes as procedural; (ii) will not apply those laws
of the State of New York which such court would characterize
as revenue, expropriatory, penal or similar laws; and
(iii) will not apply those laws of the State of New York the
application of which such court would characterize as
inconsistent with "public policy", as such term is
understood under the Specified Laws.
7. The laws of the Province of Ontario permit an action to be
brought on a final, conclusive and subsisting judgment in
personam of the courts of the State of New York or the
courts of the United States of America for the Southern
District of New York, which is not impeachable as void or
voidable under the internal laws of the State of New York,
for a sum certain if (i) the court rendering such judgment
had jurisdiction over the judgment debtor, as recognized by
the courts of the Province of Ontario; (ii) such judgment
debtor was duly served with the process of the courts of
State of New York or the courts of the United States of
America for the Southern District of New York or appeared to
such process, (iii) such judgment was not obtained by fraud
or in a manner contrary to natural justice and the
enforcement thereof would not be inconsistent with "public
policy", as such term is understood under the laws of the
Province of Ontario or contrary to any order made by the
Attorney General of Canada under the Foreign
Extraterritorial Measures Act (Canada); (iv) the enforcement
of such judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue,
expropriatory, penal or similar laws; and (v) prior to the
rendering of judgment by the court in the Province of
Ontario, the judgment debtor does not avail itself of any
right or defense based on either law or admissible fact
which has accrued to such judgment debtor subsequent to the
entering of such judgment of the courts of the State of New
York or the courts of the United States of America for the
Southern District of New York.
8. Our documentary review, including that of the Credit
Agreement, disclosed nothing which would indicate that the
transactions contemplated by the Credit Agreement are
inconsistent with "public policy" as such term is understood
under the Specified Laws.
The foregoing opinions are subject to the qualifications that:
<PAGE>
4
(i) for the purposes of paragraph 1 we have relied upon the
opinions of counsel (copies of which have been delivered to
you) in each of the Provinces and Territories of Canada
(other than Ontario) as to the qualification of CCCL to do
business therein and our opinion in that regard is subject
to the qualifications appearing in the opinions of such
counsel; and
(ii) for the purposes of paragraph 4 we have relied in part
on the certificate of an officer of CFC and CCCL (a copy of
which has been delivered to you) as to the materiality of
pending litigation or proceedings.
This opinion is given as of the date hereof and we undertake
no obligation to notify you of any changes in law or fact occurring after the
date hereof. This opinion is furnished to you solely in connection with the
execution and delivery of the Credit Agreement and may not be furnished to any
other person, firm or corporation other than any assignee or participant under
the Credit Agreement or any bank examiner or other regulatory authority
without our prior written consent and may not be relied upon by any one other
than you, the other counsel providing legal opinions to you pursuant to
Section 6.1(e) of the Credit Agreement, and by you and such other counsel only
in connection with the execution and delivery of the Credit Agreement.
Very truly yours,
<PAGE>
EXHIBIT D-1 TO
SHORT TERM
REVOLVING CREDIT AGREEMENT
[FORM OF ASSIGNMENT AND ACCEPTANCE]
Reference is made to the Short Term Revolving Credit Agreement, dated
as of April 26, 1996 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among CHRYSLER FINANCIAL CORPORATION
("CFC"), CHRYSLER CREDIT CANADA LTD. ("CCCL"), the Banks parties thereto, the
Managing Agents parties thereto, ROYAL BANK OF CANADA, as Canadian
Administrative Agent, and CHEMICAL BANK, as Administrative Agent. Unless
otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
____________ (the "Assignor") and ____________ (the "Assignee")
agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as
of the Effective Date (as defined below), an interest (the "Assigned
Interest"), as described on Schedule 1, in and to the Assignor's rights and
obligations under the Credit Agreement with respect to those credit facilities
contained in the Credit Agreement as set forth on Schedule 1 (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1.
2. The Assignor A. makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any instrument or
document furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, or
any instrument or document furnished pursuant thereto, other than that it has
not created any adverse claim upon the interest being assigned by it hereunder
and that such interest is free and clear of any such adverse claim, and B.
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of CFC, CCCL, any Subsidiaries or any other obligor
or the performance or observance by CFC, CCCL, any Subsidiaries or any other
obligor of any of their respective obligations under the Credit Agreement or
any instrument or document furnished pursuant hereto or thereto.
3. The Assignee A. represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; B. confirms that it
has received a copy of the Credit Agreement, together with such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; C. agrees
that it has made and will, independently and without reliance upon the
Assignor, either Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement or
any instrument or document furnished pursuant hereto or thereto; D. appoints
and authorizes the Administrative Agent to take such action as administrative
agent on its behalf and to exercise such powers and discretion under the
Credit Agreement or any instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; E. in the case of each C$
Bank, appoints and authorizes the Canadian Administrative Agent to take such
action as Canadian administrative agent on its behalf and to exercise such
powers and discretion under the Credit Agreement or any instrument or document
<PAGE>
2
furnished pursuant hereto or thereto as are delegated to the Canadian
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and F. agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank.
4. The effective date of this Assignment and Acceptance shall be
__________ __ , 199__ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the relevant Agent for
recording by such Agent pursuant to Section 12.7(c) of the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed
to by the Administrative Agent, be earlier than five Business Days after the
date of such recording by the relevant Agent).
5. Upon such recording, from and after the Effective Date, the
relevant Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) which
accrue subsequent to the Effective Date to the Assignee. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the relevant
Agent for periods prior to the Effective Date or with respect to the making of
this assignment directly between themselves.
6. From and after the Effective Date, A. the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Bank thereunder and shall
be bound by the provisions thereof and B. the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
<PAGE>
Schedule 1
to Assignment and Acceptance
relating to the Short Term Revolving Credit Agreement,
dated as of April 26, 1996
Among Chrysler Financial Corporation, Chrysler Credit Canada Ltd.,
the Banks parties
thereto, the Managing Agents parties thereto,
Royal Bank of Canada, As Canadian Administrative Agent
and Chemical Bank, as administrative agent
- ------------------------------------------------------------------------------
Name and Address of Assignor:
Name and Address of Assignee:
Clearing Account No. of Assignee:
Name of Automated Clearing House Member
at which Clearing Account of Assignee is Located:<F1>1
Effective Date of Assignment:
Credit Principal
Facility Assigned Amount Assigned
- ------------------------------ ---------------------------
$ ________________
[Name of Assignee] [Name of Assignor]
By ___________________________ By ____________________________
Name: Name:
Title: Title:
<F1>
- --------
1 Clearing House information required for US$ Banks only.
<PAGE>
2
Consented To:
CHRYSLER FINANCIAL CORPORATION
By: _____________________________________
Name:
Title:
CHEMICAL BANK, as Administrative Agent
By: _____________________________________
Name:
Title:
[Consents required only to the extent expressly
provided in Section 12.7 of the Credit
Agreement.]
Receipt Acknowledged for Purposes of Recordation
in the relevant Register:
[CHEMICAL BANK, as Administrative Agent
By: _________________________________________
Name:
Title:]
[ROYAL BANK OF CANADA, as Canadian
Administrative Agent
By: _________________________________________
Name:
Title:]
<PAGE>
EXHIBIT D-2 TO
SHORT TERM
REVOLVING CREDIT AGREEMENT
[FORM OF NEW BANK SUPPLEMENT]
SUPPLEMENT, dated _________________, to the Short Term
Revolving Credit Agreement, dated as of April 26, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CHRYSLER FINANCIAL CORPORATION ("CFC"), CHRYSLER CREDIT CANADA LTD., the
Banks parties thereto, the Managing Agents parties thereto, ROYAL BANK OF
CANADA, as Canadian Administrative Agent, and CHEMICAL BANK, as Administrative
Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section 12.10(a)
thereof that any Commercial Bank, although not originally a party thereto, may
become a party to the Credit Agreement with the consent of CFC by executing
and delivering to CFC and the Administrative Agent a supplement to the Credit
Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned was not an original party to the
Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of
the Credit Agreement, and agrees that it shall, on the date this
Supplement is accepted by CFC and the Administrative Agent, become a
Bank for all purposes of the Credit Agreement to the same extent as
if originally a party thereto.
2. [The undersigned shall be a US$ Bank and the amount of
its U.S. Commitment shall be $___________________.] [The undersigned
shall be a C$ Bank and amount of its Canadian Commitment shall be
$_______________.]
3. The undersigned's address for notices for the purposes of
the Credit Agreement is as follows:
4. The undersigned's Chrysler Financial Corporation Clearing
Account No. is ____________, and the name of the Automated Clearing
House member at which such Clearing Account is located is
____________.<F2>2
<F2>
- --------
2 Clearing House information required for US$ Banks only.
<PAGE>
2
5. Terms defined in the Credit Agreement shall have their
defined meanings when used herein.
IN WITNESS WHEREOF, the undersigned has caused this
Supplement to be executed and delivered by a duly authorized officer on the
date first above written.
[INSERT NAME OF BANK]
By________________________________
Title:
Accepted this _____ day of
______________, 199_.
CHRYSLER FINANCIAL CORPORATION
By____________________________
Title:
Accepted this ____ day of
______________, 199_.
CHEMICAL BANK, as Administrative Agent
By____________________________
Title:
<PAGE>
EXHIBIT D-3 TO
SHORT TERM
REVOLVING CREDIT AGREEMENT
[FORM OF COMMITMENT INCREASE SUPPLEMENT]
SUPPLEMENT, dated _________________, to the Short Term
Revolving Credit Agreement, dated as of April 26, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CHRYSLER FINANCIAL CORPORATION ("CFC"), CHRYSLER CREDIT CANADA LTD.
("CCCL"), the Banks parties thereto, the Managing Agents parties thereto,
ROYAL BANK OF CANADA, as Canadian Administrative Agent, and CHEMICAL BANK, as
Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section 12.10(b)
thereof that any Bank with the consent of CFC may increase the amount of its
Commitment by executing and delivering to CFC and the Administrative Agent a
supplement to the Credit Agreement in substantially the form of this
Supplement; and
WHEREAS, the undersigned now desires to increase the amount
of its Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and
conditions of the Credit Agreement, that on the date this Supplement
is accepted by CFC and the Administrative Agent it [shall have its
U.S. Commitment to CFC increased by $______________] [shall have its
Canadian Commitment to CCCL increased by $______________], thereby
making the amount of its [U.S.] [Canadian] Commitment
$______________].
2. Terms defined in the Credit Agreement shall have their
defined meanings when used herein.
<PAGE>
2
IN WITNESS WHEREOF, the undersigned has caused this
Supplement to be executed and delivered by a duly authorized officer on the
date first above written.
[INSERT NAME OF BANK]
By________________________________
Title:
Accepted this _____ day of
______________, 199_.
CHRYSLER FINANCIAL CORPORATION
By____________________________
Title:
Accepted this ____ day of
______________, 199_.
CHEMICAL BANK, as Administrative Agent
By____________________________
Title:
<PAGE>
EXHIBIT D-4 TO
SHORT TERM
REVOLVING CREDIT AGREEMENT
[FORM OF COMMITMENT REALLOCATION SUPPLEMENT]
SUPPLEMENT, dated _________________, to the Short Term
Revolving Credit Agreement, dated as of April 26, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CHRYSLER FINANCIAL CORPORATION ("CFC"), CHRYSLER CREDIT CANADA LTD., the
Banks parties thereto, the Managing Agents parties thereto, ROYAL BANK OF
CANADA, as Canadian Administrative Agent, and CHEMICAL BANK, as Administrative
Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section 12.10(c)
thereof that CFC, with the consent of the affected Bank(s) and the
Administrative Agent, may reallocate all or any portion of the Canadian
Commitment of any C$ 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 and
delivering to the Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement;
WHEREAS, CFC now desires to reallocate the [Canadian][U.S.]
Commitment of [insert name of Bank] to the [U.S.][Canadian] Commitment of its
Related [US$][C$] Bank (the "Affected Bank(s)") under the Credit Agreement;
and
WHEREAS, each of the Affected Bank(s) and the Administrative
Agent has consented to such reallocation;
NOW THEREFORE, each party hereto hereby agrees as follows:
1. Each party hereto agrees, subject to the terms and
conditions of the Credit Agreement, that on the date this Supplement
has been consented to by each of the Affected Bank(s) and the
Administrative Agent, [insert name of Bank] shall have $__________ of
its [Canadian][U.S.] Commitment reallocated to the [U.S.][Canadian]
Commitment of its Related [US$][C$] Bank, thereby making the amount
of its [Canadian][U.S.] Commitment $________ and the amount of its
Related [US$][C$] Bank's [U.S.][Canadian] Commitment $_________.
2. Terms defined in the Credit Agreement shall have their
defined meanings when used herein.
<PAGE>
2
IN WITNESS WHEREOF, the undersigned has caused this
Supplement to be executed and delivered by a duly authorized officer on the
date first above written.
CHRYSLER FINANCIAL CORPORATION
By____________________________________
Title:
Consented to this ____ day of
______________, 199_.
[NAME(S) OF BANK(S)]
By___________________________________
Title:
Consented to this ____ day of
______________, 199_.
CHEMICAL BANK, as Administrative Agent
By___________________________________
Title:
<PAGE>
EXHIBIT E TO
SHORT TERM
REVOLVING CREDIT AGREEMENT
[FORM OF U.S. R/C LOAN PROMISSORY NOTE]
U.S. R/C LOAN PROMISSORY NOTE
$______________ New York, New York
___________, 199_
FOR VALUE RECEIVED, the undersigned, Chrysler Financial Corporation,
a Michigan corporation ("CFC"), hereby unconditionally promises to pay to the
order of [NAME OF BANK] (the "Bank") at the office of Chemical Bank, located
at 270 Park Avenue, New York, New York 10017, in lawful money of the United
States of America and in immediately available funds, on the Maturity Date the
principal amount of (a) [AMOUNT IN WORDS] DOLLARS ($ ), or, if less, (b) the
aggregate unpaid principal amount of all U.S. R/C Loans made by the Bank to
CFC pursuant to Section 2.1 of the Credit Agreement, as hereinafter defined.
CFC further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in Section 4.3 of such Credit Agreement.
The holder of this promissory note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof, the date, Type and
amount of each U.S. R/C Loan made pursuant to the Credit Agreement and the
date and amount of each payment or prepayment of principal thereof, each
continuation thereof, each conversion of all or a portion thereof to another
Type and, in the case of Eurodollar Loans, the length of each Interest Period
with respect thereto. Each such endorsement shall constitute prima facie
evidence of the accuracy of the information endorsed. The failure to make any
such endorsement or any error in such endorsement shall not affect the
obligations of CFC in respect of any U.S. R/C Loan.
This promissory note (a) has been issued pursuant to Section 12.7(b)
of the Short Term Revolving Credit Agreement dated as of April 26, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among CFC, Chrysler Credit Canada Ltd., a Canadian corporation,
the Banks 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, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to prepayment in whole or in part as provided in
the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
promissory note shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this promissory
note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notices of any kind.
<PAGE>
2
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
CHRYSLER FINANCIAL CORPORATION
By: __________________________
Title:
<PAGE>
Schedule A
to U.S. R/C Promissory Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Amount Amount of Base Rate Unpaid
Amount of Base Rate Converted to Amount of Principal of Loans Converted to Principal Balance
Date Loans Base Rate Loans Base Rate Loans Repaid Eurodollar Loans of Base Rate Loans Notation Made By
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
Schedule B
to U.S. R/C Promissory Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid Base Rate Loans Loans Made By
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Exhibit 10-H
CONFORMED COPY
==============================================================================
$6,000,000,000
LONG TERM REVOLVING CREDIT AGREEMENT
Dated as of April 26, 1996
CHRYSLER FINANCIAL CORPORATION and
CHRYSLER CREDIT CANADA LTD.,
as BORROWERS
ABN AMRO BANK, N.V.,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF COMMERCE,
CREDIT SUISSE, FIRST CHICAGO NBD CORPORATION,
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONSBANK OF NORTH CAROLINA, N.A.,
SOCIETE GENERALE and THE TORONTO-DOMINION BANK,
as MANAGING AGENTS
ROYAL BANK OF CANADA,
as CANADIAN ADMINISTRATIVE AGENT
CHEMICAL BANK,
as ADMINISTRATIVE AGENT
==============================================================================
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS................................................... 1
1.1 Defined Terms................................................ 1
1.2 Other Definitional Provisions................................ 18
SECTION 2. THE U.S. COMMITMENTS.......................................... 18
2.1 The U.S. Commitments......................................... 18
2.2 Procedure for Borrowing...................................... 19
2.3 U.S. Liquidity Facility Loans................................ 19
2.4 Conversion and Continuation Options.......................... 20
2.5 Minimum Amount of Eurodollar Tranches........................ 21
2.6 Certain Matters Relating to Eurodollar Loans................. 21
SECTION 3. THE CANADIAN COMMITMENTS...................................... 22
3.1 The Canadian Commitments..................................... 22
3.2 Procedure for C$ R/C Loan Borrowing.......................... 22
3.3 Bankers' Acceptances......................................... 23
3.4 C$ Liquidity Facility Loans.................................. 25
3.5 Conversion Option............................................ 27
3.6 Currency Fluctuations, etc................................... 27
SECTION 4. GENERAL PROVISIONS............................................ 28
4.1 Evidence of Debt............................................. 28
4.2 Repayment of Loans........................................... 28
4.3 Interest Rate and Payment Dates.............................. 28
4.4 Lending Procedures........................................... 29
4.5 Facility Fees................................................ 30
4.6 Termination or Reduction of Commitments...................... 30
4.7 Optional Prepayments......................................... 31
4.8 Pro Rata Treatment and Payments.............................. 31
4.9 Computation of Interest and Fees............................. 32
4.10 Increased Costs............................................. 33
4.11 Changes in Capital Requirements............................. 33
4.12 Indemnity................................................... 35
4.13 Taxes....................................................... 35
4.14 Use of Proceeds............................................. 37
4.15 Replacement of Banks........................................ 37
SECTION 5. REPRESENTATIONS AND WARRANTIES................................ 37
5.1 Financial Condition.......................................... 37
5.2 No Change.................................................... 38
5.3 Corporate Existence.......................................... 38
5.4 Corporate Authorization; No Violation........................ 38
5.5 Government Authorization..................................... 38
5.6 Federal Regulations.......................................... 38
5.7 Enforceable Obligations...................................... 38
5.8 No Material Litigation....................................... 38
5.9 Taxes........................................................ 39
<PAGE>
Page
5.10 ERISA....................................................... 39
5.11 Investment Company Act; Other Regulations................... 39
5.12 Existing Financial Covenants................................ 39
SECTION 6. CONDITIONS PRECEDENT.......................................... 39
6.1 Conditions to Effectiveness.................................. 39
6.2 Conditions to Each Facility Loan............................. 41
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............................................ 43
8.1 Debt to Equity Ratio......................................... 43
8.2 Limitation on Fundamental Change............................. 43
8.3 Limitation on Liens.......................................... 43
8.4 Additional Covenants......................................... 45
SECTION 9. EVENTS OF DEFAULT............................................. 46
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................................. 49
10.5 Notice of Default........................................... 49
10.6 Non-Reliance on Agents, Other Banks and CASC. ............. 49
10.7 Indemnification............................................. 50
10.8 Agents in their Individual Capacity......................... 50
10.9 Successor Agents............................................ 50
10.10 The Managing Agents........................................ 51
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........................ 55
12.5 Reinstatement............................................... 55
12.6 Payments.................................................... 56
12.7 Judgments Relating to Guarantee............................. 56
12.8 Independent Obligations..................................... 57
- ii -
<PAGE>
Page
SECTION 13. MISCELLANEOUS................................................ 57
13.1 Amendments and Waivers...................................... 57
13.2 Notices..................................................... 57
13.3 Clearing Accounts........................................... 59
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............................................ 61
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........................ 64
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 April 26, 1996
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, CREDIT SUISSE,
FIRST CHICAGO NBD CORPORATION, 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).
"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.
<PAGE>
2
"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.
"Applicable Margin": with respect to each Eurodollar Loan or
Bankers' 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%: 0.1300% 0.1600% 0.2250% 0.2500% 0.5000%
Greater than 50%: 0.2550% 0.2850% 0.3500% 0.3750% 0.6250%
</TABLE>
<PAGE>
3
"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 365;
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": the upper limit of the Bank of Canada operating
band for overnight loans as announced from time to time.
"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
<PAGE>
4
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.
"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
<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
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, constituting C$
Loans made pursuant to the liquidity facility described in said
Section.
"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 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
<PAGE>
6
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 Facility Fee": as defined in Section 4.5(b).
"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.
"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.
<PAGE>
7
"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.
"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.
<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.
"Designated Canadian Commitment Amount": with respect to each
C$ Bank at a particular time, the Designated Canadian Percentage of
such C$ Bank's Canadian Commitment then in effect; provided, that in
the event that C$ Loans shall be outstanding after the Canadian
Commitments shall have been terminated, the "Designated Canadian
Commitment Amount" of such C$ Bank, on any day, shall be deemed to
equal the Designated Canadian Percentage of the aggregate principal
amount of the C$ Loans (US$ Equivalent) made by such C$ Bank
outstanding on such day.
"Designated Canadian Percentage": a percentage which may be
specified by each C$ Bank, and may be changed from time to time, by
written notice to each Facility Borrower and each Agent; provided,
that if no such percentage has been so specified, such percentage
shall be deemed to be zero. Each such notice shall, unless otherwise
agreed by each Facility Borrower, be furnished within a 30-day period
commencing on the Effective Date or commencing on an anniversary of
the Effective Date.
"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, April 26, 1996.
"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).
<PAGE>
9
"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 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 Eurodollar 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 Long
Term Revolving Credit Agreement dated as of May 1, 1995 among CFC,
CCCL, the banks parties thereto, Royal, as Canadian Administrative
Agent, and Chemical, as Administrative Agent and (b) the Short Term
Revolving Credit Agreement dated as of May 1, 1995 among CFC, CCCL,
the banks parties thereto, Royal, as Canadian Administrative Agent,
and Chemical, as Administrative Agent.
"Facility Borrowers": the collective reference to CFC and CCCL.
"Facility Fee": any U.S. Facility Fee or Canadian Facility Fee.
<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 0.0700%
Level II Status 0.0900%
Level III Status 0.1250%
Level IV Status 0.2000%
Level V Status 0.2500%
</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": the later of (a) the Termination Date and (b) the
date on which all of the Loans shall have been paid in full.
"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.
<PAGE>
11
"Fitch": Fitch Investors Service, Inc. and its successors.
"Foreign Borrowers": the collective reference to (a) the
Foreign Subsidiary Borrowers and (b) if applicable, CFC in its
capacity as a borrower under any Foreign Currency Subfacility.
"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 the relevant Foreign Currency Subfacility Addendum.
"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.
<PAGE>
12
"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.
"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, 1995 applied consistently with those used in compiling the
financial statements included in the 1995 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.
"Initial Offered Canadian Commitment Amount": with respect to
each C$ Bank, the amount specified opposite such Bank's name on
Schedule I in the column captioned "Initial Offered Canadian
Commitment Amount", which amount shall equal 75% of the aggregate
Canadian commitment amount offered by such Bank in connection with the
initial syndication of the Canadian Commitments and the initial
syndication of the "Canadian Commitments" under the Short Term
Revolving Credit Agreement.
"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:
<PAGE>
13
(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.
"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
$100,000,000 (or the equivalent thereof in any other currency).
<PAGE>
14
"Moody's": Moody's Investors Service, Inc. and its successors.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New Bank": as defined in Section 13.10(a).
"1995 Annual Report": CFC's annual report to stockholders for
the fiscal year ended December 31, 1995.
"Other Taxes": as defined in Section 4.13(a).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor
corporation.
"Person": an individual, a partnership, a corporation
(including a business trust), a joint stock company, a trust, an
unincorporated association, a joint venture or other entity or a
government or any agency or political subdivision thereof.
"Plan": any pension plan which is covered by Title IV of ERISA
and in respect of which CFC or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Prohibited Transaction": any "prohibited transaction" as
defined in Section 406 of ERISA or Section 4975 of the Code.
"Rating Agencies": the collective reference to D&P, Fitch,
Moody's and S&P.
"Real Estate Business": the acquisition, development, leasing,
financing, management, maintenance and disposition of real property,
including, without limitation, automotive dealership facilities and
dealership site control arrangements.
"Reference Banks": the collective reference to the Eurodollar
Reference Banks, the Schedule I C$ 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
<PAGE>
15
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 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 Services, 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 April 26, 1996, 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.
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16
"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.
"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": April 26, 2001, or, if such day is not a
Business Day, the next preceding Business Day.
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17
"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).
"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$ Bank Net Combined Commitment": with respect to each US$
Bank, an amount equal to such US$ Bank's US$ Bank Combined Commitment
minus, in the case of each US$ Bank that has a Related C$ Bank, such
Related C$ Bank's Designated Canadian Commitment Amount.
"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. Facility Fee": as defined in Section 4.5(a).
<PAGE>
18
"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), constituting
US$ Loans made pursuant to the liquidity facility described in said
Section.
"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 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
<PAGE>
19
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 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. Liquidity Facility Loans. (a) Subject to the terms and
conditions hereof, each U.S. L/F Bank severally agrees to make liquidity
facility 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.
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20
(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 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
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21
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 $50,000,000.
2.6 Certain Matters Relating to Eurodollar Loans. (a) In the
event that (i) the Administrative Agent determines (which determination shall
be conclusive and binding upon CFC) that by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate in respect of any Eurodollar Loans, or (ii)
the Required U.S. Banks determine (which determination shall be conclusive and
binding upon CFC) and shall notify the Administrative Agent that the rates of
interest referred to in the definition of "Eurodollar Rate" as the basis upon
which the rate of interest for Eurodollar Loans is to be determined do not
adequately cover the cost to the US$ 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 ("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
<PAGE>
22
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 (i) is (x) organized under the laws of the United States or any
State thereof or (y) 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 and
(ii) is subject to actual Reserve Requirements in respect of its Eurodollar
Loans. Each US$ Bank agrees to notify the Administrative Agent promptly upon
becoming 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 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.
<PAGE>
23
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$100,000 or any integral multiple thereof.
(iv) Term. Bankers' Acceptances shall be issued and shall
mature on a Business Day. Each Bankers' Acceptance shall have a term
of at least 30 days and not more than 365 days excluding days of grace
and shall mature on or before the Termination Date and shall be in
form and substance reasonably satisfactory to each C$ 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. In addition, CCCL hereby appoints each C$ Bank
as its attorney to sign and endorse on its behalf, in handwriting or
by facsimile or mechanical signature as and when deemed necessary by
such C$ Bank, blank forms of Bankers' Acceptances. CCCL recognizes and
agrees that all Bankers' Acceptances signed and/or endorsed on its
behalf by a C$ Bank shall bind CCCL as fully and effectually as if
signed in the handwriting of and duly issued by the proper signing
officers of CCCL. 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.
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24
(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.
(ix) Purchase of Bankers' Acceptances. On the relevant
Borrowing Date, each C$ Bank shall purchase 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
<PAGE>
25
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:
(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$ Liquidity Facility Loans. (a) Subject to the terms and
conditions hereof, each C$ L/F Bank severally agrees to make liquidity
facility 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
<PAGE>
26
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 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
<PAGE>
27
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
(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 (which reduction, in the case of Bankers' Acceptances, may be effected
by cash collateralization thereof on terms reasonably satisfactory to each C$
Bank) 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.
<PAGE>
28
(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 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 Termination Date (or such earlier date as may be
established pursuant to Section 9).
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.
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29
(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 (including, in the case of L/F Loans, upon
any refunding thereof pursuant to Section 2.3(b) or 3.4(b), as the case may
be); 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).
(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 Excess 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 make its share of such borrowing
available to such Agent forthwith on demand, 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
<PAGE>
30
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. (a) CFC agrees to pay to the Administrative
Agent, for the account of each US$ Bank, in Dollars, a facility fee (the "U.S.
Facility Fee") for each day from and including the Effective Date to but
excluding 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 Net
Combined Commitment of such US$ Bank in effect on such day.
(b) CCCL agrees to pay to the Canadian Administrative Agent,
for the account of each relevant C$ Bank, in Dollars, a facility fee (the
"Canadian Facility Fee") for each day from and including the Effective Date to
but excluding 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 Designated
Canadian Commitment Amount of such C$ Bank in effect on such day.
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, (a) the Aggregate U.S. Extensions of
Credit of each US$ Bank shall be no greater than such Bank's U.S. Net
Commitment, (b) the Aggregate U.S./Foreign Extensions of Credit of each US$
Bank shall be no greater than such Bank's U.S. Commitment and (c) the
aggregate of all Foreign Currency Subfacility Maximum Borrowing Amounts in
respect of each US$ Bank shall not exceed 60% of 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 shall be accompanied by prepayment
in full of the Loans, together with accrued interest thereon to the date of
such prepayment.
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31
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 C$1,000,000 in excess thereof (in the case of C$
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. 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 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. The relevant Agent shall promptly distribute such payments to each Bank
entitled to receive a portion thereof in like funds as received. 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.
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32
(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 is expressed herein and 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 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.
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33
(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.
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
<PAGE>
34
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 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.
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35
(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
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 by any country (or any
political subdivision or
<PAGE>
36
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
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.
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37
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 or 4.13 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 or 4.13, as the case may be, and (ix) 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, 1995, 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, 1996, 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, 1996, neither CFC nor any of
its Subsidiaries had any asset, liability, contingent obligation, liability
for taxes, long-term lease
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38
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, 1995 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.
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
<PAGE>
39
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, 1995, 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.
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
<PAGE>
40
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:
(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)
<PAGE>
41
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.
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;
<PAGE>
42
(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.
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 8.2.
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
<PAGE>
43
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 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 confirmation that it is a resident of Canada for
purposes of the Income Tax Act (Canada), 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).
8.3 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,
<PAGE>
44
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;
(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 8.3, 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
<PAGE>
45
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 8.3(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.
8.4 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 (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 8.4(c).
(b) Minimum Equity. CFC shall not permit Equity
(determined without giving effect to any redemption of preferred stock
of CFC made pursuant to Section 8.4(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. In addition, CFC shall not, and shall not permit any
Subsidiary to, engage in any transaction with any CFC 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 CFC
Affiliates. As used in this Section 8.4(c), "Intercompany Agreement"
means any agreement between CFC or any
<PAGE>
46
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, 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, 8.2 or 8.4; 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
<PAGE>
47
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 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
$100,000,000 (or the equivalent thereof in any other currency) or
more, shall have been unpaid for a period of 60 days and shall not
have been stayed; or
(i) Chrysler shall at any time fail to own at least 51% of the
issued and outstanding shares of the common stock of CFC; or
(j) CFC or any of its Significant Subsidiaries shall default in
the observance or performance of any financial covenant contained in
any instrument or agreement evidencing, securing or relating to any of
its Material Indebtedness, the effect of which default is to cause, or
to permit the holder or holders of such Material Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, such
Material Indebtedness to become due prior to its stated maturity;
<PAGE>
48
then, and in any such event, (a) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to CFC,
automatically the Commitments shall immediately terminate and the Loans
(including the face amount of all Bankers' Acceptances accepted by any C$
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.
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
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49
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 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,
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50
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 such 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 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 30
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 30-day period following such Agent's notice to the
Banks or its removal as Agent, such Agent shall then, with the consent of
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51
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. 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 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 any relevant 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. Each Foreign Currency Subfacility Addendum shall specify whether the
relevant Foreign Currency Subfacility is a Foreign Committed Subfacility or a
Foreign Uncommitted Subfacility. 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 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.
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52
(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 $2,000,000,000, (ii) the aggregate of all Foreign
Currency Subfacility Maximum Borrowing Amounts in respect of any Bank at any
time exceed 60% 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 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, any 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, any 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
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53
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 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 Borrower to reduce 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 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
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
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54
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.
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
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55
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
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.
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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 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, an amount that would be equal to the amount
that such Bank would have received under the guarantee contained in this
Section 12 had no such withholding or deduction been required calculated after
taking into account all applicable Taxes and Other Taxes. 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
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57
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; 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,
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58
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:
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.
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59
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 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 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
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60
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 (ii) 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 $26,250,000 (unless, in each case, at CFC's
discretion, a lesser amount is mutually agreed upon between CFC and such Bank
or assignee, as applicable), (iv) CFC and the Administrative Agent shall have
consented to the making of such assignment (which consent in each case shall
not be unreasonably withheld or delayed), (v) the transferor Bank, the
assignee, the Administrative Agent and CFC (if its consent to such assignment
is required hereunder) shall have executed and delivered an Assignment and
Acceptance substantially in the form of Exhibit D-1, (vi) after giving effect
to any such assignment by a US$ Bank, (x) the Aggregate U.S./Foreign
Extensions of Credit of such Bank shall not exceed its U.S. Commitment and (y)
the aggregate of all Foreign Currency Subfacility Maximum Borrowing Amounts in
respect of such Bank shall not exceed 60% of such Bank's U.S. Commitment, and
(vii) the transferor Bank shall have paid to the Administrative Agent a
registration and processing fee of $2,500 (or such lesser amount as may be
agreed to by the Administrative Agent); provided, however, that no consent by
CFC shall be required in the case of assignments to a Commercial Bank
controlled by, controlling or under common control with an assignor Bank or
pursuant to a merger or consolidation of such Bank with another entity or a
similar transaction involving such Bank and provided further, that a U.S. L/F
Bank or C$ 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
<PAGE>
61
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 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
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62
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.
(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.
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63
(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 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 Initial Offered
Canadian Commitment Amount.
(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 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
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64
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
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
<PAGE>
65
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$ 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.
<PAGE>
66
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\ D.M. Cantwell
------------------------------------
Title: Vice President and Treasurer
CHRYSLER CREDIT CANADA LTD.
By:\s\ D.M. Cantwell
------------------------------------
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\ David W. Cox
------------------------------------
Title: Senior Manager
<PAGE>
SCHEDULE I TO
LONG TERM REVOLVING CREDIT AGREEMENT
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Initial Offered
Canadian Canadian Combined
Banks U.S. Commitment Commitment Commitment Amount Commitment
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
*Chemical Bank(1) ...................... $146,250,000 $ 26,250,000 $ 26,250,000 $172,500,000
*The Chase Manhattan Bank, N.A ......... 150,000,000 -- -- 150,000,000
**Royal Bank of Canada ................. 165,000,000 78,750,000 300,000,000 243,750,000
*ABN AMRO Bank N.V.(2) ................. 195,000,000 18,750,000 18,750,000 213,750,000
*Bank of America NT & SA(3) ............ 187,500,000 26,250,000 26,250,000 213,750,000
*The Bank of New York .................. 213,750,000 -- -- 213,750,000
**The Bank of Nova Scotia .............. 138,750,000 75,000,000 262,500,000 213,750,000
*Banque Nationale de Paris, Chicago
Branch(4) ........................... 202,500,000 11,250,000 11,250,000 213,750,000
**Canadian Imperial Bank of Commerce ... 138,750,000 75,000,000 262,500,000 213,750,000
*Credit Suisse(5) ...................... 191,250,000 22,500,000 22,500,000 213,750,000
The Long-Term Credit Bank of Japan, Ltd.
New York Branch ..................... 213,750,000 -- -- 213,750,000
*Morgan Guaranty Trust Company of
New York(6) ......................... 202,500,000 11,250,000 11,250,000 213,750,000
*NationsBank, N.A ...................... 213,750,000 -- -- 213,750,000
*NBD Bank .............................. 213,750,000 -- -- 213,750,000
*Societe Generale(7) ................... 187,500,000 26,250,000 26,250,000 213,750,000
**The Toronto-Dominion Bank ............ 138,750,000 75,000,000 262,500,000 213,750,000
Commerzbank Aktiengesellschaft Grand
Cayman Branch ........................ 150,000,000 -- -- 150,000,000
*Credit Lyonnais Chicago Branch(8) ..... 120,000,000 30,000,000 30,000,000 150,000,000
The Fuji Bank Limited .................. 150,000,000 -- -- 150,000,000
*Swiss Bank Corporation, New York
Branch(9) ............................ 131,250,000 18,750,000 18,750,000 150,000,000
*Union Bank of Switzerland (Chicago
Branch)(10) .......................... 131,250,000 18,750,000 18,750,000 150,000,000
Bank of Montreal ....................... 56,250,000 37,500,000 112,500,000 93,750,000
Banque Paribas ......................... 93,750,000 -- -- 93,750,000
*Comerica Bank ......................... 93,750,000 -- -- 93,750,000
The Dai-Ichi Kangyo Bank, Ltd.(11) ..... 86,250,000 7,500,000 7,500,000 93,750,000
Fleet National Bank .................... 93,750,000 -- -- 93,750,000
The Sakura Bank, Limited ............... 93,750,000 -- -- 93,750,000
The Sanwa Bank, Ltd., Chicago Branch ... 93,750,000 -- -- 93,750,000
Bayerische Vereinsbank AG .............. 75,000,000 -- -- 75,000,000
Kredietbank N.V ........................ 75,000,000 -- -- 75,000,000
*Mellon Bank N.A.(12) .................. 67,500,000 7,500,000 7,500,000 75,000,000
National Westminster Bank Plc(13) ...... 67,500,000 7,500,000 7,500,000 75,000,000
PNC Bank, N.A .......................... 75,000,000 -- -- 75,000,000
<FN>
*/ U.S. L/F Bank.
**/ U.S. L/F Bank and C$ L/F Bank.
- --------
1 Related C$ Bank: Chemical Bank of Canada
2 Related C$ Bank: ABN AMRO Bank Canada
3 Related C$ Bank: Bank of America Canada
4 Related C$ Bank: Banque Nationale de Paris (Canada)
5 Related C$ Bank: Credit Suisse Canada
6 Related C$ Bank: J.P. Morgan Canada
7 Related C$ Bank: Societe Generale (Canada)
8 Related C$ Bank: Credit Lyonnais Canada
9 Related C$ Bank: Swiss Bank Corporation (Canada)
10 Related C$ Bank: Union Bank of Switzerland (Canada)
11 Related C$ Bank: Dai-Ichi Kangyo Bank (Canada)
12 Related C$ Bank: Mellon Bank Canada
13 Related C$ Bank: National Westminster Bank of Canada
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Initial Offered
Canadian Canadian Combined
Banks U.S. Commitment Commitment Commitment Amount Commitment
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Banca Nazionale del Lavoro S.p.A. -
New York Branch ................... 56,250,000 -- -- 56,250,000
Caisse Nationale de Credit Agricole . 56,250,000 -- -- 56,250,000
CARIPLO - Cassa di Risparmio delle
Provincie Lombarde S.p.A .......... 56,250,000 -- -- 56,250,000
The Mitsui Trust and Banking
Company, Limited .................. 56,250,000 -- -- 56,250,000
Banca Commerciale Italiana1(14) ..... 30,000,000 7,500,000 7,500,000 37,500,000
Banca Di Roma - Chicago Branch ...... 37,500,000 -- -- 37,500,000
Bankers Trust Company ............... 37,500,000 -- -- 37,500,000
Bank of Tokyo - Mitsubishi Ltd. .....
New York Branch ................... 37,500,000 -- -- 37,500,000
Barclays Bank PLC ................... 37,500,000 -- -- 37,500,000
CoreStates Bank, N.A ................ 37,500,000 -- -- 37,500,000
Istituto Bancario San Paolo di
Torino SpA ........................ 37,500,000 -- -- 37,500,000
National Bank of Canada ............. 18,750,000 18,750,000 18,750,000 37,500,000
The Northern Trust Company .......... 37,500,000 -- -- 37,500,000
Wells Fargo Bank, N.A ............... 37,500,000 -- -- 37,500,000
The Yasuda Trust & Banking Co., Ltd. 37,500,000 -- -- 37,500,000
Banca CRT S.p.A ..................... 26,250,000 -- -- 26,250,000
Credito Italiano SpA ................ 26,250,000 -- -- 26,250,000
The First National Bank of Maryland . 26,250,000 -- -- 26,250,000
Gulf International Bank B.S.C ....... 26,250,000 -- -- 26,250,000
Michigan National Bank .............. 26,250,000 -- -- 26,250,000
National City Bank .................. 26,250,000 -- -- 26,250,000
Seattle-First National Bank ......... 26,250,000 -- -- 26,250,000
Society National Bank ............... 26,250,000 -- -- 26,250,000
United States National Bank of Oregon 26,250,000 -- -- 26,250,000
Total ............................. $5,400,000,000 $ 600,000,000 $1,458,750,000 $6,000,000,000
<FN>
*/ U.S. L/F Bank.
**/ U.S. L/F Bank and C$ L/F Bank.
- --------
14 Related C$ Bank: Banca Commerciale Italiana of Canada
</TABLE>
<PAGE>
SCHEDULE II TO
LONG TERM REVOLVING CREDIT AGREEMENT
None
<PAGE>
EXHIBIT A TO
LONG TERM REVOLVING CREDIT AGREEMENT
[FORM OF ADDENDUM]
ADDENDUM TO LONG TERM REVOLVING CREDIT AGREEMENT
The undersigned Bank (a) agrees to all of the provisions of the
Long Term Revolving Credit Agreement dated as of April 26, 1996 among Chrysler
Financial Corporation ("CFC"), Chrysler Credit Canada Ltd. ("CCCL"), the Banks
parties thereto, the Managing Agents parties thereto, Royal Bank of Canada, as
Canadian Administrative Agent, and Chemical Bank, as Administrative Agent (as
the same may be amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), and (b) becomes a party thereto, as a Bank and, in
each case to the extent indicated on Schedule I to the Credit Agreement, a US$
Bank, a C$ Bank, a U.S. L/F Bank and/or a C$ L/F Bank, with an obligation (i)
in the case of a US$ Bank, to make U.S. R/C Loans to CFC, (ii) in the case of
a C$ Bank, to make C$ R/C Loans to and accept Bankers' Acceptances from CCCL,
(iii) in the case of a U.S. L/F Bank, to make U.S. L/F Loans to CFC, and (iv)
in the case of a C$ L/F Bank, to make C$ L/F Loans to CCCL, provided, that,
after giving effect thereto, as applicable, (x) the aggregate principal amount
of a US$ Bank's U.S. R/C Loans and U.S. L/F Loans (if any) shall not exceed
such US$ Bank's U.S. Commitment as set forth opposite the undersigned Bank's
name on said Schedule I (or, if less, its U.S. Net Commitment) and (y) the
aggregate principal amount (US$ Equivalent) of a C$ Bank's C$ R/C Loans,
Bankers' Acceptances and C$ L/F Loans (if any) shall not exceed such C$ Bank's
Canadian Commitment as set forth opposite the undersigned Bank's name on said
Schedule I, in each case as the amount of such U.S. Commitment or Canadian
Commitment, as applicable, may be changed from time to time as provided in the
Credit Agreement. Capitalized terms defined in the Credit Agreement shall have
their respective defined meanings herein.
1. Address(es) for notices for the purposes of Section 13.2 of
the Credit Agreement:
Address(es) for Notices:
______________________________ ______________________________
______________________________ ______________________________
Attention: Attention:
Telecopy Number: Telecopy Number:
2. For US$ Banks only:
Clearing Account No.: _________________
Name of Automated Clearing House Member
at which Clearing Account is Located: _____________________________
Name of Bank:_____________________
As of April 26, 1996 By _______________________________
Title:
<PAGE>
EXHIBIT B TO
LONG TERM REVOLVING CREDIT AGREEMENT
[FORM OF CLOSING CERTIFICATE]
CLOSING CERTIFICATE
Pursuant to Sections 6.1(b), (c) and (d) of the Long Term
Revolving Credit Agreement dated as of April 26, 1996 (the "Credit Agreement";
unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement)
among CHRYSLER FINANCIAL CORPORATION ("CFC"), CHRYSLER CREDIT CANADA LTD.
("CCCL"), the Banks parties thereto, the Managing Agents parties thereto,
ROYAL BANK OF CANADA, as Canadian Administrative Agent, and CHEMICAL BANK, as
Administrative Agent, the undersigned ________ of [CFC] [CCCL] hereby
certifies as follows:
1. The representations and warranties of [CFC] [CCCL] contained
in the Credit Agreement or in any certificate, document or financial
or other statement furnished by or on behalf of [CFC] [CCCL] pursuant
to or in connection with the Credit Agreement are true and correct in
all material respects on and as of the date hereof with the same
effect as if made on the date hereof except for representations and
warranties stated to relate to a specific earlier date, in which case
such representations and warranties were true and correct in all
material respects as of such earlier date;
2. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to any Loans
to be made on the date hereof;
3. ____________________ is and at all times since
_____________________ 19__, has been the duly elected and qualified
[Assistant] Secretary of [CFC] [CCCL] and the signature set forth on
the signature line for such officer below is such officer's true and
genuine signature;
and the undersigned [Assistant] Secretary of [CFC] [CCCL] hereby certifies
as follows:
4. There are no liquidation or dissolution proceedings pending
or to my knowledge threatened against [CFC] [CCCL], nor to my
knowledge has any other event occurred affecting or threatening the
corporate existence of [CFC] [CCCL];
5. [CFC] [CCCL] is a corporation duly organized, validly
existing and in good standing under the laws of [Michigan] [Canada];
6. Attached hereto as Exhibit A is a complete and correct copy
of resolutions duly adopted by the Board of Directors (or a duly
authorized committee thereof) of [CFC] [CCCL] on _________, 19__; such
resolutions have not in any way been amended, modified, revoked or
rescinded and have been in full force and effect since their adoption
to and including the date hereof and are now in full force and effect;
such resolutions are the only corporate proceedings of [CFC] [CCCL]
now in force relating to or affecting the matters referred to therein;
7. Attached hereto as Exhibit B is a complete and correct copy
of the by-laws of [CFC] [CCCL] as in effect at all times since
_________________, 19__ to and including the date hereof; and attached
hereto as Exhibit C is a true and complete copy of the certificate of
<PAGE>
2
incorporation of [CFC] [CCCL] as in effect at all times since
___________________, 19__ to and including the date hereof; and
8. The following persons are now duly elected and qualified
officers of [CFC] [CCCL] holding the offices indicated next to their
respective names below, and such officers have held such offices with
[CFC] [CCCL] at all times since ________________, 19__ to and
including the date hereof, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such
officers, and each of such officers is duly authorized to execute and
deliver on behalf of [CFC] [CCCL] the Credit Agreement and any
certificate or other document to be delivered by [CFC] [CCCL] pursuant
to the Credit Agreement:
Name Office Signature
---- ------ ---------
_____________________ [________] ____________________
_____________________ [Assistant] Secretary ____________________
IN WITNESS WHEREOF, the undersigned have hereto set our names.
_____________________ _____________________
Title: [___________] Title: [Assistant] Secretary
Date: April 26, 1996
<PAGE>
EXHIBIT C-1 TO
LONG TERM
REVOLVING CREDIT AGREEMENT
[FORM OF OPINION OF SIMPSON THACHER & BARTLETT]
April 26, 1996
To: Chemical Bank, as administrative agent
under the Revolving Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
The Banks listed on Schedule I hereto
Re: The Long Term Revolving Credit Agreement, dated
as of April 26, 1996 (the "Credit Agreement"),
among Chrysler Financial Corporation, a
Michigan corporation ("CFC"), Chrysler Credit
Canada Ltd., a Canadian corporation ("CCCL";
together with CFC, the "Facility Borrowers"),
the Banks parties thereto, the Managing Agents
parties thereto, Royal Bank of Canada, as
Canadian Administrative Agent, and Chemical
Bank, as Administrative Agent.
Ladies and Gentlemen:
We have acted as counsel to the Administrative Agent in
connection with the execution and delivery of the Credit Agreement.
This opinion is delivered to you pursuant to Section
6.1(e)(i) of the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
In arriving at the opinion expressed below, we have
examined (a) a counterpart of the Credit Agreement, signed by CFC, CCCL, the
Canadian Administrative Agent and the Administrative Agent and (b) such
documents as we have deemed necessary or appropriate for the purposes of this
opinion.
In such examination, we have assumed the genuineness of
all signatures, the authenticity, regularity and completeness of all documents
submitted to us as originals, the completeness of all documents submitted to
us as certified, conformed or photostatic copies and the conformity of such
documents to the original documents.
<PAGE>
-2- April 26, 1996
We have also assumed that the Credit Agreement has been
duly authorized, executed and delivered by each Facility Borrower; that each
Facility Borrower is duly incorporated and validly existing under the laws of
its jurisdiction of incorporation and has the corporate power and authority to
execute, deliver and perform its obligations under the Credit Agreement; that
neither Facility Borrower is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended; that the execution, delivery and
performance by each Facility Borrower of the Credit Agreement has been duly
authorized by all necessary corporate action on the part of each Facility
Borrower, does not contravene the certificate of incorporation, by-laws or
similar organizational documents of either Facility Borrower, does not
violate, or require any consent not obtained under, any applicable law or
regulation or any order, writ, injunction or decree of any court or other
Governmental Authority binding upon either Facility Borrower and does not
violate, or require any consent not obtained under, any contractual obligation
applicable to or binding upon either Facility Borrower; and that the Credit
Agreement constitutes a valid and legally binding obligation of the Canadian
Administrative Agent, the Managing Agents and the Banks.
Based upon the foregoing, and subject to the
qualifications and comments set forth below, we are of the opinion that,
insofar as the law of the State of New York is concerned, the Credit Agreement
constitutes a valid and legally binding obligation of each Facility Borrower,
enforceable against each Facility Borrower in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing, except that we express no opinion as to (a) Section 13.15(b) of
the Credit Agreement insofar as it relates to an action brought in the United
States District Court for the Southern District of New York and note that such
matters may be raised by such court; (b) any indemnification obligations of
the Facility Borrowers under the Credit Agreement to the extent such
obligations might be deemed to be inconsistent with public policy; (c) any
provision of the Credit Agreement that purports to establish an evidentiary
standard for determinations by the Banks or either Agent; (d) any setoff right
contained in Section 13.8 or 13.9 of the Credit Agreement authorizing any Bank
to set off and apply deposits at any time held, and any other indebtedness at
any time owing, by such Bank to or for the account of any party against any
participation transferred to or by such Bank; (e) Sections 12.7 and 13.17 of
the Credit Agreement; or (f) any Foreign Currency Subfacility.
We note that (i) a New York statute provides that with
respect to a foreign currency obligation, a court of the State of New York
shall render a judgment or decree in such foreign currency and such judgment
or decree shall be converted into currency of the United States at the rate of
exchange prevailing on the date of entry of such judgment or decree and (ii)
with respect to a foreign currency obligation, a United States Federal court
in New York may award judgment in United States dollars, provided that we
express no opinion as to the rate of exchange such court would apply.
We are members of the Bar of the State of New York and we
do not express any opinion herein concerning any law other than the law of the
State of New York.
This opinion has been rendered solely for your benefit in
connection with the Credit Agreement and the transactions contemplated thereby
and may not be relied upon by you for any other purpose, or relied upon by any
other person, firm or corporation without our prior written consent or
<PAGE>
-3- April 26, 1996
furnished to any other person, firm or corporation other than any assignee or
participant under the Credit Agreement or any bank examiner or other
regulatory authority without our prior written consent.
Very truly yours,
SIMPSON THACHER & BARTLETT
<PAGE>
SCHEDULE I
THE BANKS
<PAGE>
EXHIBIT C-2
TO LONG TERM
REVOLVING CREDIT AGREEMENT
[FORM OF OPINION OF GENERAL COUNSEL
of
CFC]
April 26, 1996
To: Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
The Banks parties to the Credit Agreement referred to below
Dear Sirs:
I am General Counsel of Chrysler Financial Corporation, a
Michigan corporation ("CFC"), and have acted as counsel to CFC in connection
with the execution and delivery of the Long Term Revolving Credit Agreement,
dated as of April 26, 1996 (the "Credit Agreement"), among CFC, Chrysler
Credit Canada Ltd. ("CCCL"; together with CFC, the "Facility Borrowers"), the
Banks parties thereto, the Managing Agents parties thereto, Royal Bank of
Canada, as Canadian Administrative Agent, and Chemical Bank, as Administrative
Agent. This opinion is delivered to you pursuant to Section 6.1(e)(ii) of the
Credit Agreement. Terms used herein which are defined in the Credit Agreement
shall have the respective meanings set forth in the Credit Agreement, unless
otherwise defined herein.
In connection with this opinion, I, or members of my
staff, have examined executed copies (or telecopies of signature pages) of the
Credit Agreement and such corporate documents and records of the Facility
Borrowers, and certificates of public officials and officers of the Facility
Borrowers, and such other documents, as I, or members of my staff, have deemed
necessary or appropriate for the purposes of this opinion. For the purposes of
this opinion, I have assumed (i) the genuineness of all signatures of, and the
authority of, Persons signing the Credit Agreement on behalf of parties
thereto other than the Facility Borrowers, (ii) the authenticity of all
documents submitted to me as originals, (iii) the conformity to authentic
original documents of all documents submitted to me as certified, conformed or
photostatic copies and (iv) the due authorization, execution and delivery of
the Credit Agreement by the parties thereto other than the Facility Borrowers.
My opinions expressed herein are limited to the laws of
the State of Michigan, the State of New York, the General Corporation Law of
the State of Delaware, and the Federal laws of the United States of America
(the "Specified Laws"), and I do not express any opinion herein concerning any
other law (including, without limitation, any law of any political subdivision
of the foregoing States). For the purposes of this opinion I have assumed that
the laws of the State of New York are identical to the laws of the State of
Michigan.
<PAGE>
2
Based upon the foregoing and subject to the
qualifications set forth herein, I am of the opinion that:
1. CFC is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Michigan and 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 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.
2. The Credit Agreement has been duly executed and
delivered on behalf of CFC. The execution, delivery and performance
by each Facility Borrower of the Credit Agreement (a) are within
the corporate powers of CFC, (b) have been duly authorized by all
necessary corporate action on the part of CFC, and (c) do not
contravene (i) the charter or by-laws of CFC, (ii) any law, rule,
or regulation under the Specified Laws presently in effect which
affects or binds either Facility Borrower or any of its respective
properties (including, without limitation, Regulations G, T, U and
X of the Board of Governors of the Federal Reserve System) or, to
the best of my knowledge, any order, writ, judgment, injunction,
decree, determination or award presently in effect which affects or
binds either Facility Borrower or any of its respective properties
or (iii) to the best of my knowledge, any Contractual Obligation to
which either Facility Borrower is a party; except to the extent
that such contravention, in case of either clause (ii) or (iii),
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 either Facility Borrower to fulfill
its obligations under the Credit Agreement or on the rights and
remedies of either Agent or any of the Banks thereunder.
3. No authorization or approval or other action by, and
no notice to or filing with, any Governmental Authority under the
Specified Laws is required to be obtained or made by either
Facility Borrower for the due execution, delivery and performance
by such Facility Borrower of the Credit Agreement.
4. To the best of my knowledge after due inquiry, no
litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or threatened by or against
CFC or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to the Credit Agreement, 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. The Credit Agreement constitutes the legal, valid and
binding obligation of each Facility Borrower, enforceable against
each Facility Borrower in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
6. Neither 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.
<PAGE>
3
7. None of the Administrative Agent, the Canadian
Administrative Agent, the Managing Agents and the Banks will become
subject to any income, franchise or other tax imposed by a
Governmental Authority of the State of Michigan solely by reason of
the transactions contemplated by the Credit Agreement.
I express no opinion as to (a) the effect of any laws
other than the Specified Laws which limit the rates of interest legally
chargeable or collectible; (b) any obligation of any party to the Credit
Agreement to indemnify other Persons to the extent such obligation might be
deemed to be inconsistent with public policy; (c) any setoff right contained
in Section 13.8 of the Credit Agreement authorizing any Bank to set off and
apply deposits at any time held, and any other indebtedness at any time owing,
by such Bank to or for the account of any party against any participation
transferred to or by such Bank; (d) any agreement to pay interest on interest;
(e) Section 13.15(b) of the Credit Agreement insofar as it relates to an
action brought in the United States District Court for the Southern District
of New York and note that such matters may be raised by such court; or (f) any
provision of the Credit Agreement that purports to establish an evidentiary
standard for determinations by the Banks.
This opinion is given as of the date hereof and I
undertake no obligation to notify you of any changes in law or fact occurring
after the date hereof. This opinion is furnished to you solely in connection
with the execution and delivery of the Credit Agreement and may not be
furnished to any other person, firm or corporation other than any assignee or
participant under the Credit Agreement or any bank examiner or other
regulatory authority without my prior written consent and may not be relied
upon by any one other than you, the other counsel providing legal opinions to
you pursuant to Section 6.1(e) of the Credit Agreement, and by you and such
other counsel only in connection with the execution and delivery of the Credit
Agreement.
Very truly yours,
<PAGE>
EXHIBIT C-3
TO LONG TERM
REVOLVING CREDIT AGREEMENT
[FORM OF OPINION OF CANADIAN COUNSEL
to
CCCL]
April 26, 1996
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
The Banks parties to the Credit Agreement referred to below
Dear Sirs:
We have acted as Canadian Counsel to Chrysler Credit
Canada Ltd., a Canada corporation ("CCCL") in connection with the execution
and delivery of the Long Term Revolving Credit Agreement, dated as of April
26, 1996 (the "Credit Agreement"), among Chrysler Financial Corporation
("CFC", together with CCCL, the "Facility Borrowers"), CCCL, the Banks parties
thereto, the Managing Agents parties thereto, Royal Bank of Canada, as
Canadian Administrative Agent, and Chemical Bank, as Administrative Agent.
This opinion is delivered to you pursuant to Section 6.1(e)(iii) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth in the Credit Agreement, unless
otherwise defined herein.
In connection with this opinion, we have examined
executed copies (or facsimile transmitted signature pages) of the Credit
Agreement and such corporate documents and records of CCCL, and certificates
of public officials and officers of CCCL, and such other documents as we have
deemed necessary or appropriate for the purposes of this opinion. For the
purposes of this opinion, we have assumed (i) the genuineness of all
signatures of, and the authority of, Persons signing the Credit Agreement on
behalf of parties thereto other than CCCL, (ii) the authenticity of all
documents submitted to us as originals, (iii) the conformity to authentic
original documents of all documents
<PAGE>
2
submitted to us as certified, conformed, facsimile or photostatic copies and
(iv) the due authorization, execution and delivery of the Credit Agreement by
the parties thereto other than CCCL.
Except as indicated below in respect of the opinion
contained in paragraph 1, the opinions expressed herein are limited to the
laws of the Province of Ontario and the laws of Canada applicable therein (the
"Specified Laws"), and we do not express any opinion herein concerning any
other law (including, without limitation, any law of any political subdivision
of the Province of Ontario).
Based upon the foregoing and subject to the
qualifications set forth herein, we are of the opinion that:
(1) CCCL is a corporation duly incorporated and validly
existing under the Canada Business Corporations Act and
is duly qualified to do business 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 to the extent that the failure to be so qualified
would not have a material adverse effect on the business,
operations or financial condition of CFC and its
Subsidiaries taken as a whole.
(2) The Credit Agreement has been duly executed on behalf of
CCCL. The execution, delivery and performance by CCCL of
the Credit Agreement (a) are within the corporate powers
of CCCL, (b) have been duly authorized by all necessary
corporate action on the part of CCCL, and (c) do not
contravene (i) the charter or by-laws of CCCL, (ii) any
law, rule, or regulation under the Specified Laws
presently in effect which affects or binds CCCL or any of
its properties or, to the best of our knowledge without
having made any enquiry as to the existence thereof, any
order, writ, judgment, injunction, determination or award
presently in effect which affects or binds CCCL or any of
its properties or (iii) to the best of our knowledge
without having made an enquiry as to the existence
thereof, any Contractual Obligation to which CCCL is a
party; except to the extent that such contravention, in
case of either clause (ii) or (iii), 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 CCCL to fulfill its
obligations under the Credit Agreement.
(3) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority
under the Specified Laws is required to be obtained or
made by either Facility Borrower for the due execution,
delivery and performance by such Facility Borrower of the
Credit Agreement.
(4) To the best of our knowledge after due inquiry, no
litigation or proceeding of or before any arbitrator or
Governmental Authority of Canada or the Province of
Ontario is pending by or against CCCL or against any of
its properties or revenues (a) with
<PAGE>
3
respect to the Credit Agreement, 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) None of the Managing Agents, the Canadian Administrative
Agent or the C$ Banks will be liable for, and CCCL will
not be required to deduct or withhold, any Canadian
Withholding Tax on or from any amounts paid or credited
to a C$ Bank by CCCL on account of C$ Loans (including
interest and Acceptance Fees) or Canadian Facility Fees
under the Credit Agreement. None of the Administrative
Agent, the Managing Agents or the Banks (other than the
C$ Banks) will be subject to any Taxes on amounts paid or
credited to a C$ Bank by CCCL on account of C$ Loans
(including interest and Acceptance Fees) or Canadian
Facility Fees under the Credit Agreement.
The term "Taxes" shall mean all taxes, charges, fees,
levies, imports and other assessments, including all
income, sales, use, goods and services, value added,
capital, capital gains, alternative, net worth, transfer,
profits, withholding, payroll, employer health, excise,
real property and personal property taxes, and any other
taxes, customs duties, fees, assessments or other similar
charges in the nature of a tax together with any
installments with respect thereto and any interest, fines
and penalties, imposed by any Governmental Authority of
Canada or of the Province of Ontario.
The term "Canadian Withholding Tax" shall mean all taxes
imposed under Part XIII of the Income Tax Act (Canada)
and any similar taxes imposed under the Corporations Tax
Act (Ontario).
(6) In any action or proceeding arising out of or relating to
the Credit Agreement in any court of competent
jurisdiction in the Province of Ontario, such court would
recognize and give effect to the provisions of Section
13.14 of the Credit Agreement wherein the respective
parties thereto agree that the Credit Agreement shall be
governed by, and construed and interpreted in accordance
with, the laws of the State of New York and, to the
extent specifically pleaded and proved as a fact by
expert evidence, such court would apply the laws of the
State of New York to all issues which under conflict of
laws rules in effect in the Province of Ontario are
characterized to be contract issues, except that any such
court (i) will apply those laws of the Province of
Ontario which such court characterizes as procedural and
will not apply those laws of the State of New York which
such court characterizes as procedural; (ii) will not
apply those laws of the State of New York which such
court would characterize as revenue, expropriatory, penal
or similar laws; and (iii) will not apply those laws of
the State of New York the application of which such court
would characterize as inconsistent with "public policy",
as such term is understood under the Specified Laws.
(7) The laws of the Province of Ontario permit an action to
be brought on a final, conclusive and subsisting judgment
in personam of the courts of the State of New York or the
courts of the United States of America for the Southern
District of New York, which is not impeachable as void or
voidable under the internal laws of the State of New
York, for a sum certain if (i) the court rendering such
judgment had jurisdiction over the judgment debtor, as
recognized by the courts of the Province of Ontario; (ii)
such judgment debtor was duly served with the process of
the courts of State of New York or the courts of the
United States of America for the Southern
<PAGE>
4
District of New York or appeared to such process, (iii)
such judgment was not obtained by fraud or in a manner
contrary to natural justice and the enforcement thereof
would not be inconsistent with "public policy", as such
term is understood under the laws of the Province of
Ontario or contrary to any order made by the Attorney
General of Canada under the Foreign Extraterritorial
Measures Act (Canada); (iv) the enforcement of such
judgment does not constitute, directly or indirectly, the
enforcement of foreign revenue, expropriatory, penal or
similar laws; and (v) prior to the rendering of judgment
by the court in the Province of Ontario, the judgment
debtor does not avail itself of any right or defense
based on either law or admissible fact which has accrued
to such judgment debtor subsequent to the entering of
such judgment of the courts of the State of New York or
the courts of the United States of America for the
Southern District of New York.
(8) Our documentary review, including that of the Credit
Agreement, disclosed nothing which would indicate that
the transactions contemplated by the Credit Agreement are
inconsistent with "public policy" as such term is
understood under the Specified Laws.
The foregoing opinions are subject to the qualifications
that:
(i) for the purposes of paragraph 1 we have
relied upon the opinions of counsel (copies of which have
been delivered to you) in each of the Provinces and
Territories of Canada (other than Ontario) as to the
qualification of CCCL to do business therein and our
opinion in that regard is subject to the qualifications
appearing in the opinions of such counsel; and
(ii) for the purposes of paragraph 4 we have
relied in part on the certificate of an officer of CFC
and CCCL (a copy of which has been delivered to you) as
to the materiality of pending litigation or proceedings.
This opinion is given as of the date hereof and we
undertake no obligation to notify you of any changes in law or fact occurring
after the date hereof. This opinion is furnished to you solely in connection
with the execution and delivery of the Credit Agreement and may not be
furnished to any other person, firm or corporation other than any assignee or
participant under the Credit Agreement or any bank examiner or other
regulatory authority without our prior written consent and may not be relied
upon by any one other than you, the other counsel providing legal opinions to
you pursuant to Section 6.1(e) of the Credit Agreement, and by you and such
other counsel only in connection with the execution and delivery of the Credit
Agreement.
Very truly yours,
<PAGE>
EXHIBIT D-1 TO
LONG TERM
REVOLVING CREDIT AGREEMENT
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Long Term Revolving Credit Agreement,
dated as of April 26, 1996 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among CHRYSLER FINANCIAL
CORPORATION ("CFC"), CHRYSLER CREDIT CANADA LTD. ("CCCL"), the Banks parties
thereto, the Managing Agents parties thereto, ROYAL BANK OF CANADA, as
Canadian Administrative Agent, and CHEMICAL BANK, as Administrative Agent.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
_____________ (the "Assignor") and ____________ (the "Assignee")
agree as follows:
I. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as
of the Effective Date (as defined below), an interest (the "Assigned
Interest"), as described on SCHEDULE 1, in and to the Assignor's rights and
obligations under the Credit Agreement with respect to those credit facilities
contained in the Credit Agreement as set forth on SCHEDULE 1 (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on SCHEDULE 1.
II. The Assignor A. makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any
instrument or document furnished pursuant thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, or any instrument or document furnished pursuant thereto, other
than that it has not created any adverse claim upon the interest being
assigned by it hereunder and that such interest is free and clear of any such
adverse claim, and B. makes no representation or warranty and assumes no
responsibility with respect to the financial condition of CFC, CCCL, any
Subsidiaries or any other obligor or the performance or observance by CFC,
CCCL, any Subsidiaries or any other obligor of any of their respective
obligations under the Credit Agreement or any instrument or document furnished
pursuant hereto or thereto.
III. The Assignee A. represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; B. confirms that it
has received a copy of the Credit Agreement, together with such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; C. agrees
that it has made and will, independently and without reliance upon the
Assignor, either Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement or
any instrument or document furnished pursuant hereto or thereto; D. appoints
and authorizes the Administrative Agent to take such action as administrative
agent on its behalf and to exercise such powers and discretion under the
Credit Agreement or any instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; E. in the case of each C$
Bank, appoints and authorizes the Canadian Administrative Agent to take such
action as Canadian administrative agent on its behalf and to exercise such
powers and discretion under the Credit Agreement or any instrument or document
<PAGE>
2
furnished pursuant hereto or thereto as are delegated to the Canadian
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and F. agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank.
IV. The effective date of this Assignment and Acceptance shall be ,
199 (the "Effective Date"). Following the execution of this Assignment and
Acceptance, it will be delivered to the relevant Agent for recording by such
Agent pursuant to Section 13.7(c) of the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of
such recording by the relevant Agent).
V. Upon such recording, from and after the Effective Date, the
relevant Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) which
accrue subsequent to the Effective Date to the Assignee. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the relevant
Agent for periods prior to the Effective Date or with respect to the making of
this assignment directly between themselves.
VI. From and after the Effective Date, A. the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Bank thereunder and shall
be bound by the provisions thereof and B. the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
VII. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
<PAGE>
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE LONG TERM REVOLVING CREDIT AGREEMENT,
DATED AS OF APRIL 26, 1996
AMONG CHRYSLER FINANCIAL CORPORATION, CHRYSLER CREDIT CANADA LTD.,
THE BANKS PARTIES
THERETO, THE MANAGING AGENTS PARTIES THERETO,
ROYAL BANK OF CANADA, AS CANADIAN ADMINISTRATIVE AGENT
AND CHEMICAL BANK, AS ADMINISTRATIVE AGENT
- ------------------------------------------------------------------------------
Name and Address of Assignor:
Name and Address of Assignee:
Clearing Account No. of Assignee:
Name of Automated Clearing House Member
at which Clearing Account of Assignee is Located:<F4>1
Effective Date of Assignment:
Credit Principal
Facility Assigned Amount Assigned
- ----------------------------------- -------------------------------
$ _______________
[Name of Assignee] [Name of Assignor]
By ________________________________ By ____________________________
Name: Name:
Title: Title:
<F4>
- --------
1 Clearing House information required for US$ Banks only.
<PAGE>
2
Consented To:
CHRYSLER FINANCIAL CORPORATION
By: __________________________________
Name:
Title:
CHEMICAL BANK, as Administrative Agent
By: __________________________________
Name:
Title:
[Consents required only to the extent expressly
provided in Section 13.7 of the Credit
Agreement.]
Receipt Acknowledged for Purposes of Recordation in the relevant Register:
[CHEMICAL BANK, as Administrative Agent
By: __________________________________
Name:
Title:]
[ROYAL BANK OF CANADA, as Canadian
Administrative Agent
By: __________________________________
Name:
Title:]
<PAGE>
EXHIBIT D-2 TO
LONG TERM
REVOLVING CREDIT AGREEMENT
[FORM OF NEW BANK SUPPLEMENT]
SUPPLEMENT, dated _________________, to the Long Term
Revolving Credit Agreement, dated as of April 26, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CHRYSLER FINANCIAL CORPORATION ("CFC"), CHRYSLER CREDIT CANADA LTD., the
Banks parties thereto, the Managing Agents parties thereto, ROYAL BANK OF
CANADA, as Canadian Administrative Agent, and CHEMICAL BANK, as Administrative
Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section
13.10(a) thereof that any Commercial Bank, although not originally a party
thereto, may become a party to the Credit Agreement with the consent of CFC by
executing and delivering to CFC and the Administrative Agent a supplement to
the Credit Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned was not an original party to the
Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions
of the Credit Agreement, and agrees that it shall, on the date this
Supplement is accepted by CFC and the Administrative Agent, become
a Bank for all purposes of the Credit Agreement to the same extent
as if originally a party thereto.
2. [The undersigned shall be a US$ Bank and the amount of
its U.S. Commitment shall be $___________________.] [The
undersigned shall be a C$ Bank and amount of its Canadian
Commitment shall be $_______________.]
3. The undersigned's address for notices for the purposes
of the Credit Agreement is as follows:
<PAGE>
2
4. The undersigned's Chrysler Financial Corporation
Clearing Account No. is ____________, and the name of the Automated
Clearing House member at which such Clearing Account is located is
____________.<F5>2
5. Terms defined in the Credit Agreement shall have their
defined meanings when used herein.
IN WITNESS WHEREOF, the undersigned has caused this
Supplement to be executed and delivered by a duly authorized officer on the
date first above written.
[INSERT NAME OF BANK]
By________________________________
Title:
Accepted this _____ day of ______________, 199_.
CHRYSLER FINANCIAL CORPORATION
By____________________________
Title:
Accepted this ____ day of ______________, 199_.
CHEMICAL BANK, as Administrative Agent
By____________________________
Title:
<F5>
- --------
2 Clearing House information required for US$ Banks only.
<PAGE>
EXHIBIT D-3 TO
LONG TERM
REVOLVING CREDIT AGREEMENT
[FORM OF COMMITMENT INCREASE SUPPLEMENT]
SUPPLEMENT, dated _________________, to the Long Term
Revolving Credit Agreement, dated as of April 26, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CHRYSLER FINANCIAL CORPORATION ("CFC"), CHRYSLER CREDIT CANADA LTD.
("CCCL"), the Banks parties thereto, the Managing Agents parties thereto,
ROYAL BANK OF CANADA, as Canadian Administrative Agent, and CHEMICAL BANK, as
Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section
13.10(b) thereof that any Bank with the consent of CFC may increase the amount
of its Commitment by executing and delivering to CFC and the Administrative
Agent a supplement to the Credit Agreement in substantially the form of this
Supplement; and
WHEREAS, the undersigned now desires to increase the
amount of its Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and
conditions of the Credit Agreement, that on the date this
Supplement is accepted by CFC and the Administrative Agent it
[shall have its U.S. Commitment to CFC increased by
$______________] [shall have its Canadian Commitment to CCCL
increased by $______________], thereby making the amount of its
[U.S.] [Canadian] Commitment
$______________].
2. Terms defined in the Credit Agreement shall have their
defined meanings when used herein.
<PAGE>
2
IN WITNESS WHEREOF, the undersigned has caused this
Supplement to be executed and delivered by a duly authorized officer on the
date first above written.
[INSERT NAME OF BANK]
By________________________________
Title:
Accepted this _____ day of ______________, 199_.
CHRYSLER FINANCIAL CORPORATION
By____________________________
Title:
Accepted this ____ day of ______________, 199_.
CHEMICAL BANK, as Administrative Agent
By____________________________
Title:
<PAGE>
EXHIBIT D-4 TO
LONG TERM
REVOLVING CREDIT AGREEMENT
[FORM OF COMMITMENT REALLOCATION SUPPLEMENT]
SUPPLEMENT, dated _________________, to the Long Term
Revolving Credit Agreement, dated as of April 26, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CHRYSLER FINANCIAL CORPORATION ("CFC"), CHRYSLER CREDIT CANADA LTD., the
Banks parties thereto, the Managing Agents parties thereto, ROYAL BANK OF
CANADA, as Canadian Administrative Agent, and CHEMICAL BANK, as Administrative
Agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section
13.10(c) thereof that CFC, with the consent of the affected Bank(s) and the
Administrative Agent, may reallocate all or any portion of the Canadian
Commitment of any C$ 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 and
delivering to the Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement;
WHEREAS, CFC now desires to reallocate the
[Canadian][U.S.] Commitment of [insert name of Bank] to the [U.S.][Canadian]
Commitment of its Related [US$][C$] Bank (the "Affected Bank(s)") under the
Credit Agreement; and
WHEREAS, each of the Affected Bank(s) and the
Administrative Agent has consented to such reallocation;
NOW THEREFORE, each party hereto hereby agrees as
follows:
1. Each party hereto agrees, subject to the terms and
conditions of the Credit Agreement, that on the date this
Supplement has been consented to by each of the Affected Bank(s)
and the Administrative Agent, [insert name of Bank] shall have
$__________ of its [Canadian][U.S.] Commitment reallocated to the
[U.S.][Canadian] Commitment of its Related [US$][C$] Bank, thereby
making the amount of its [Canadian][U.S.] Commitment $________ and
the amount of its Related [US$][C$] Bank's [U.S.][Canadian]
Commitment $_________.
2. Terms defined in the Credit Agreement shall have their
defined meanings when used herein.
<PAGE>
2
IN WITNESS WHEREOF, the undersigned has caused this
Supplement to be executed and delivered by a duly authorized officer on the
date first above written.
CHRYSLER FINANCIAL CORPORATION
By____________________________________
Title:
Consented to this ____ day of ______________, 199_.
[NAME(S) OF BANK(S)]
By___________________________________
Title:
Consented to this ____ day of ______________, 199_.
CHEMICAL BANK, as Administrative Agent
By___________________________________
Title:
<PAGE>
EXHIBIT E TO
LONG TERM
REVOLVING CREDIT AGREEMENT
[FORM OF U.S. R/C LOAN PROMISSORY NOTE]***
U.S. R/C LOAN PROMISSORY NOTE
$________________ New York, New York
___________, 199_
FOR VALUE RECEIVED, the undersigned, Chrysler Financial
Corporation, a Michigan corporation ("CFC"), hereby unconditionally promises
to pay to the order of [NAME OF BANK] (the "Bank") at the office of Chemical
Bank, located at 270 Park Avenue, New York, New York 10017, in lawful money of
the United States of America and in immediately available funds, on the
Termination Date the principal amount of (a) [AMOUNT IN WORDS] DOLLARS ($ ),
or, if less, (b) the aggregate unpaid principal amount of all U.S. R/C Loans
made by the Bank to CFC pursuant to Section 2.1 of the Credit Agreement, as
hereinafter defined. CFC further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in Section 4.3 of such Credit Agreement.
The holder of this promissory note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof, the date, Type and
amount of each U.S. R/C Loan made pursuant to the Credit Agreement and the
date and amount of each payment or prepayment of principal thereof, each
continuation thereof, each conversion of all or a portion thereof to another
Type and, in the case of Eurodollar Loans, the length of each Interest Period
with respect thereto. Each such endorsement shall constitute prima facie
evidence of the accuracy of the information endorsed. The failure to make any
such endorsement or any error in such endorsement shall not affect the
obligations of CFC in respect of any U.S. R/C Loan.
This promissory note (a) has been issued pursuant to Section
13.7(b) of the Long Term Revolving Credit Agreement dated as of April 26, 1996
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among CFC, Chrysler Credit Canada Ltd., a Canadian corporation,
the Banks 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, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to prepayment in whole or in part as provided in
the Credit Agreement.
- --------
*** With appropriate modifications, this form may be used to evidence U.S.
L/F Loans.
<PAGE>
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
promissory note shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this
promissory note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, protest and all other notices of
any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
CHRYSLER FINANCIAL CORPORATION
By: __________________________
Title:
<PAGE>
Schedule A
to U.S. R/C Promissory Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Amount Amount of Base Rate Unpaid
Amount of Base Rate Converted to Amount of Principal of Loans Converted to Principal Balance
Date Loans Base Rate Loans Base Rate Loans Repaid Eurodollar Loans of Base Rate Loans Notation Made By
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
Schedule B
to U.S. R/C Promissory Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Unpaid Principal
Interest Period and Principal of Eurodollar Balance of
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to Eurodollar Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid Base Rate Loans Loans Made By
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT F TO
LONG TERM
REVOLVING CREDIT AGREEMENT
[FORM OF FOREIGN CURRENCY SUBFACILITY ADDENDUM]
FOREIGN CURRENCY SUBFACILITY ADDENDUM
To: Chemical Bank, as Administrative Agent
From: Chrysler Financial Corporation
[Insert name[s] of Foreign Subsidiary Borrower[s]]
1. This Foreign Currency Subfacility Addendum is being
delivered to you pursuant to Section 11.1(a) of the Long Term Revolving Credit
Agreement, dated as of April 26, 1996, among Chrysler Financial Corporation
("CFC"), Chrysler Credit Canada Ltd., the Banks parties thereto, the Managing
Agents parties thereto, Royal Bank of Canada, as Canadian Administrative
Agent, and Chemical Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
2. The effective date (the "Addendum Effective Date") of
this Foreign Currency Subfacility Addendum will be ______________________ __,
19__.
3. Please be advised that, as of the Addendum Effective
Date, the credit facility described below is hereby designated as a "Foreign
Currency Subfacility" for the purposes of the Credit Agreement.
Type of Subfacility:****
Foreign Currenc[y][ies]:
Foreign Currency Subfacility Foreign Currency Subfacility
Maximum Borrowing Amounts: Name of Bank Maximum Borrowing Amount
------------ ----------------------------
$
- --------
**** Insert short description of terms of Foreign Currency Subfacility,
and state whether it is designated as a Foreign Committed
Subfacility or a Foreign Uncommitted Subfacility.
<PAGE>
2
4. CFC hereby represents and warrants that (i) as of the
Addendum Effective Date, a Foreign Exchange Rate with respect to each Foreign
Currency covered by such Foreign Currency Subfacility is 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 have been agreed to by the
Administrative Agent and CFC), (ii) the documentation complies in all respects
with the requirements of Section 11 of the Credit Agreement and (iii)
______________ of ______________***** contains an express acknowledgement that
such Foreign Currency Subfacility shall be subject to the provisions of
Section 11 of the Credit Agreement.
CHRYSLER FINANCIAL CORPORATION
By _______________________________
Title:
[INSERT NAME OF FOREIGN SUBSIDIARY BORROWER]
By _______________________________
Title:
[NAME OF BANK]******
By _______________________________
Title:
Acknowledged:
CHEMICAL BANK, as Administrative Agent
By________________________________
Title:
- --------
***** Provide citation to relevant provision from the documentation and
attach page containing such provision.
****** In lieu of executing Foreign Currency Subfacility
Addendum, Bank(s) may instead attach such Addendum as an
Exhibit to the relevant Foreign Currency Subfacility
documentation.
Exhibit 10-I
CONFORMED COPY
==============================================================================
COMMITMENT
TRANSFER AGREEMENT
Dated as of April 26, 1996
CHRYSLER FINANCIAL CORPORATION,
as Borrower
CHEMICAL BANK, as Administrative Agent
==============================================================================
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.................................................. 1
1.1 Defined Terms................................................... 1
1.2 Other Definitional Provisions................................... 10
SECTION 2. AMOUNT AND TERMS OF THE COMMITMENTS........................... 10
2.1 The Commitments.................................................. 10
2.2 Procedure for Borrowing.......................................... 11
2.3 Repayment of Outstanding Loans................................... 12
2.4 Evidence of Debt................................................. 12
2.5 Prepayments...................................................... 12
2.6 Minimum Amount of Eurodollar Tranches............................ 12
2.7 Interest Rate and Payment Dates.................................. 12
2.8 Mandatory Repayments............................................. 13
2.9 Conversion and Continuation Options.............................. 13
2.10 Computation of Interest......................................... 14
2.11 Inability to Determine Eurodollar Rate.......................... 14
2.12 Pro Rata Treatment and Payments................................. 15
2.13 Increased Costs................................................. 15
2.14 Transfer of Eurodollar Loans.................................... 17
2.15 Indemnity....................................................... 17
2.16 Taxes........................................................... 17
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........................................................ 19
3.3 Corporate Existence.............................................. 19
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........................................... 20
3.9 Taxes............................................................ 20
3.10 ERISA........................................................... 20
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....................................... 22
-i-
<PAGE>
Page
5.2 Maintenance of Existence........................................ 23
5.3 Notices......................................................... 23
SECTION 6. NEGATIVE COVENANTS............................................ 24
6.1 Debt to Equity Ratio............................................ 24
6.2 Limitation on Fundamental Change................................ 24
6.3 Limitation on Liens............................................. 24
6.4 Additional Covenants............................................ 26
SECTION 7. EVENTS OF DEFAULT............................................. 27
SECTION 8. THE ADMINISTRATIVE AGENT...................................... 29
8.1 Appointment..................................................... 29
8.2 Delegation of Duties............................................ 29
8.3 Exculpatory Provisions.......................................... 29
8.4 Reliance by Administrative Agent and CASC....................... 29
8.5 Notice of Default............................................... 30
8.6 Non-Reliance on Administrative Agent, Other Banks and CASC.......30
8.7 Indemnification................................................. 31
8.8 Administrative Agent in its Individual Capacity................. 31
8.9 Successor Administrative 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................................................... 38
9.14 Governing Law.................................................. 38
9.15 Submission to Jurisdiction; Waivers............................ 38
9.16 Integration.................................................... 38
9.17 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>
COMMITMENT TRANSFER AGREEMENT dated as of April 26, 1996
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 administrative agent for the Banks.
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):
"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.
"Administrative 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 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%: 0.1300% 0.1600% 0.2250% 0.2500% 0.5000%
Greater than 50%: 0.2550% 0.2850% 0.3500% 0.3750% 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 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
<PAGE>
2
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".
"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 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" 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
<PAGE>
3
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).
"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 April 26, 1996 among Chrysler Corporation,
Chrysler Canada Ltd., the banks parties thereto, Royal Bank of
Canada, as Canadian administrative agent, and Chemical Bank, as
administrative agent, 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 Administrative 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".
<PAGE>
4
"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.
"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, April 26, 1996.
"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 Administrative 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.
<PAGE>
5
"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 displaying eurodollar rates as may be
agreed upon by the Administrative 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 Administrative 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%.
"Existing Commitment Transfer Agreement" shall mean the
Fifth Amended and Restated Commitment Transfer Agreement dated as of
May 1, 1995 among the Company, the banks parties thereto and
Chemical, as Agent.
"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.
<PAGE>
6
"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.
"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, 1995 applied consistently with those used in compiling
the financial statements included in the 1995 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 Administrative Agent not less
than three Business Days prior to the last
<PAGE>
7
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
(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 April 26, 1996,
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
<PAGE>
8
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.
"New Bank" shall have the meaning set forth in subsection
9.10.
"1995 Annual Report" shall mean the Company's annual report
to stockholders for the fiscal year ended December 31, 1995.
"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.
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9
"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 Services, and its
successors.
"Short Term Revolving Credit Agreement" shall mean (i) the
Short Term Revolving Credit Agreement, dated as of April 26, 1996,
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.
"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.
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10
"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.
"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 2.5 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 Administrative
<PAGE>
11
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 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, 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 Administrative 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 such
Bank. The Administrative 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 Administrative Agent
on the date such Loans are made for transmittal by the Administrative 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 Administrative Agent shall have received
notice from a Bank prior to a Borrowing Date that such Bank will not make
available to the Administrative Agent such Bank's ratable portion of the
relevant borrowing through such Bank's Clearing Account, the Administrative
Agent may assume that such Bank has made such portion available to the
Administrative Agent through such Bank's Clearing Account on the date of such
borrowing in accordance with subsection 2.2(a) and the Administrative Agent
may, in reliance upon such assumption, make available to the Company on such
date a corresponding amount. If the Administrative Agent does, in such
circumstances, make available to the Company such amount, such Bank shall make
such ratable portion available to the Administrative Agent forthwith on
demand, 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 Administrative Agent, at the Effective Federal Funds Rate. If such amount
is so made available, such payment to the Administrative 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 Administrative
Agent, then the Administrative Agent shall notify the Company of such failure
and on the fourth Business Day following such Borrowing Date, the Company
shall pay to the Administrative 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.
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12
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 Administrative 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 Administrative 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 evidence of the existence and
amounts of the obligations of the Company therein recorded; provided, however,
that the failure of any Bank or the Administrative 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 Administrative Agent (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 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
Administrative 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.
<PAGE>
13
(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 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 Administrative 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 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.
The Company 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 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 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
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14
Administrative 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 Administrative 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 Administrative 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
Administrative 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 Administrative Agent shall notify the Company and the Banks
of the effective date and the amount of each such change in the Base Rate.
(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 Administrative 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 Administrative 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 Administrative
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 Administrative 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 Administrative 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 Administrative 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 Administrative 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 Administrative Agent determines (which determination shall be
conclusive and binding upon the Company) that by
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15
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
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
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 Administrative 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 Administrative 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 Administrative Agent for the account of the Banks at the
office of the Administrative Agent referred to in subsection 9.2 in Dollars
and in immediately available funds. The Administrative Agent shall promptly
distribute such payments to each Bank entitled to receive a portion thereof in
like funds as received. 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.
(b) Unless the Administrative 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
Administrative Agent may assume that the Company has made such payment in full
to the Administrative Agent on such date and the Administrative 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
Administrative Agent, each Bank shall repay to the Administrative 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 Administrative 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:
<PAGE>
16
(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 Administrative Agent for the account of such Bank, upon
the written demand of such Bank to the Company (with a copy to the
Administrative 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
Administrative 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 Administrative 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 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 ("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 (i) is (x) organized under the laws of the United States or any
State thereof or (y) 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 and (ii)
is subject to actual Reserve Requirements in respect of its Eurodollar Loans.
Each Bank agrees to notify the
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17
Administrative Agent promptly upon becoming 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
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 Administrative 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 Administrative 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 by any country (or any political
subdivision or
<PAGE>
18
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 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 the Company
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 the Company, and
such extensions or renewals thereof as may reasonably be requested by the
Company 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 the Company 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.
(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 Administrative Agent), the original
or a certified copy of a receipt evidencing payment thereof.
<PAGE>
19
2.17 Transferred Commitment. (a) The Company and each Bank
agree that Chrysler may by giving four days' notice to the Administrative
Agent, each Bank and the Company (which notice shall, upon receipt by the
Administrative 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 Chrysler/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 Administrative 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, 1995 and the related
consolidated statements of net earnings and cash flows for the fiscal year
ended on such date, certified by Deloitte & Touche LLP, 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, 1996 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,
1996, 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, 1995 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
<PAGE>
20
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 Administrative 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.
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 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 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
<PAGE>
21
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, 1995,
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 Administrative 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.
(b) Closing Certificate. The Administrative 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 Administrative 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 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 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 Administrative Agent shall have
received true and complete copies of the certificate of incorporation
and by-laws of the Company.
(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 A-1; and
<PAGE>
22
(ii) the executed legal opinion of Allan L.
Ronquillo, Esq., General Counsel of the Company,
substantially in the form of Exhibit A-2.
(f) Existing Commitment Transfer Agreement. The
Administrative Agent shall have received satisfactory evidence that
the Existing Commitment Transfer Agreement shall have been terminated
pursuant to an irrevocable notice of termination and that any amounts
owing thereunder by the Company shall have been (or shall upon the
occurrence of the Effective Date be) paid in full. Without affecting
any terms of the Existing Commitment Transfer Agreement which
expressly survive the termination of the Existing Commitment Transfer
Agreement, each Bank party to the Existing Commitment Transfer
Agreement hereby waives any requirement of advance notice of such
termination contained in the Existing Commitment Transfer Agreement
and hereby agrees that the Existing Commitment Transfer Agreement and
any 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
subsection 4.1.
The Administrative 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 Administrative Agent
hereunder:
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
<PAGE>
23
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
Administrative Agent may from time to time reasonably request.
(b) (i) Upon written request by any Bank through the
Administrative 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 Administrative Agent, the Company will
furnish to the Administrative 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 6.2.
5.3 Notices. The Company 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 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
<PAGE>
24
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 Administrative 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 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.
6.3 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);
(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;
<PAGE>
25
(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
(xiv) Liens to secure Indebtedness and other
obligations of the Company or any of its Finance Subsidiaries not
otherwise permitted by this subsection 6.3, 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 6.3(a) if such Domestic
Subsidiary were a Finance Subsidiary;
<PAGE>
26
(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.
6.4 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 6.4(c).
(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
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. In
addition, the Company shall not, and shall not permit any Subsidiary
to, engage in any transaction with any CFC 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 CFC Affiliates. As used in this subsection 6.4(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.
<PAGE>
27
(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, 6.2 or 6.4;
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
Administrative 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
(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
<PAGE>
28
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 Administrative 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 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
<PAGE>
29
Banks, the Administrative Agent may, or upon the request of the Required
Banks, the Administrative 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
Administrative Agent may, or upon the request of the Required Banks, the
Administrative 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 ADMINISTRATIVE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chemical as the Administrative Agent of such Bank under this
Agreement, and each Bank hereby irrevocably authorizes Chemical 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. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative 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 Administrative Agent.
8.2 Delegation of Duties. The Administrative 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 the
Company 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.
8.3 Exculpatory Provisions. Neither the Administrative
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 Administrative Agent under or in
connection with, this Agreement or for any failure of the Company to perform
its obligations hereunder. The Administrative 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.
8.4 Reliance by Administrative Agent and CASC. The
Administrative 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
<PAGE>
30
accountants and other experts selected by the Administrative Agent. The
Administrative 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 Administrative Agent in accordance with
subsection 9.7. The Administrative 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 Administrative 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 Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event
of Default unless the Administrative 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 Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to the Banks, and, if such notice is received from a
Bank, the Administrative 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 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.
8.6 Non-Reliance on Administrative Agent, Other Banks and
CASC. Each Bank expressly acknowledges that neither the Administrative 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 Administrative Agent hereafter
taken, including any review of the affairs of the Company, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Bank. Each Bank represents to the Administrative Agent and CASC that it has,
independently and without reliance upon the Administrative 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 Administrative 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 Administrative Agent hereunder,
the Administrative 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 which may come into the possession of the Administrative Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
<PAGE>
31
8.7 Indemnification. The Banks agree to indemnify the
Administrative 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 Administrative 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 Administrative 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 Administrative 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 Administrative Agent in its Individual Capacity. The
Administrative 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 Administrative Agent were not the Administrative Agent hereunder. With
respect to its Loans made or renewed by it, the Administrative 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 Administrative Agent and the terms
"Bank" and "Banks" shall include the Administrative Agent in its individual
capacity.
8.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent, upon 30 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 Administrative Agent shall resign or be removed as
Administrative 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 thirty-day period
following the Administrative Agent's notice to the Banks or its removal as
Administrative Agent, the Administrative Agent shall then, with the consent of
the Company, appoint a successor agent who shall serve as Administrative 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 Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon its
appointment, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act
or deed on the part of such former Administrative Agent or any of the parties
to this Agreement or any holders of the obligations owing by the Company
hereunder. After any retiring Administrative Agent's resignation hereunder as
Administrative 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
Administrative Agent under this Agreement.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. With the written consent of the
Required Banks, the Administrative 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
<PAGE>
32
changing in any manner the rights of the Banks or of the Company hereunder,
and with the consent of the Required Banks, the Administrative Agent on behalf
of the Banks may execute and deliver to the Company 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 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 Administrative 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 8.3 of
the Long Term Revolving Credit Agreement, subsection 6.3 hereof shall not be
so amended, and if any provision of Section 8.3 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 Administrative 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 Administrative 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 Administrative 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 Administrative 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 Administrative Agent,
<PAGE>
33
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 Company
hereunder:
The Company: Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Vice President and Treasurer
Telecopy: 810-948-3801
The Administrative 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 Administrative
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 Administrative 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
Administrative Agent and CASC to cause such Bank's Clearing Account to be
credited with its ratable share of payments received by the Administrative
Agent from the Company. The Clearing Account of each Bank shall be maintained
at its own expense and free of charge to the Administrative Agent, CASC and
the Company.
(b) The Administrative 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 Administrative Agent for the
account of the Company at the office of the Administrative Agent set forth in
subsection 9.2 in funds immediately available to the Administrative Agent.
9.4 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative 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 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 the Administrative
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 Administrative 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 Administrative Agent
or CASC pursuant to the provisions of subsection 8.7 and (y) the
Administrative 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 Administrative 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 Administrative 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")
<PAGE>
35
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 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 Administrative
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 13.6(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 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 Administrative 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 Administrative Agent and the Banks
may treat each Person whose name
<PAGE>
36
is recorded in the Register as the owner of the Loans 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 upon
reasonable prior notice. The Administrative 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 Administrative Agent, one
or more additional financial institutions may become a party to this Agreement
by executing a supplement hereto with the Company and the Administrative
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 13.9 thereof. Effective as of the date on which any such New Bank
becomes a Bank pursuant to the provisions of this subsection, the
Administrative Agent, each Bank and the Company shall receive a notice from
Chrysler of each Bank's Commitment and the aggregate Commitments pursuant to
subsection 2.5 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 Administrative 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
<PAGE>
37
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 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
Administrative 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 2.5(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 Administrative Agent, each Bank and the Company shall receive a
notice from Chrysler of each Bank's Commitment and the aggregate Commitments
pursuant to subsection 2.5 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 Administrative 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 Administrative 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 Administrative Agent and the Company that
under applicable law and treaties no taxes will be required to be withheld by
the Administrative 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
Administrative 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 Administrative Agent and the Company) to
provide the transferor Bank (if applicable), the Administrative 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.
<PAGE>
38
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 Administrative Agent.
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 Administrative 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 Administrative Agent or any Bank relative
to the subject matter hereof not reflected herein.
<PAGE>
39
9.17 WAIVERS OF JURY TRIAL. THE COMPANY, THE
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\ D.M. Cantwell
------------------------------------
Title: Vice President and Treasurer
CHEMICAL BANK, as Administrative Agent
By:\s\ Rosemary Bradley
------------------------------------
Title: Vice President
<PAGE>
SCHEDULE I TO
COMMITMENT TRANSFER AGREEMENT
Chemical Bank
The Chase Manhattan Bank, N.A.
Royal Bank of Canada
ABN AMRO Bank N.V.
Bank of America NT & SA
The Bank of New York
The Bank of Nova Scotia
Banque Nationale de Paris, Chicago Branch
Canadian Imperial Bank of Commerce
Comerica Bank
Commerzbank Aktiengesellschaft Grand Cayman Branch
Credit Lyonnais Chicago Branch
NBD Bank
The Long-Term Credit Bank of Japan, Ltd. New York Branch
Morgan Guaranty Trust Company of New York
NationsBank, N.A.
Societe Generale
The Toronto-Dominion Bank
Arab Banking Corporation
Banca Nazionale Del Lavoro S.p.A. New York Branch
Bankers Trust Company
Bank of Montreal
Barclays Bank PLC
CARIPLO - Cassa di Risparmio delle Provincie Lombarde S.p.A.
Credit Suisse
The Dai-Ichi Kangyo Bank, Ltd.
The Fuji Bank, Limited
Istituto Bancario San Paolo di Torino SpA
Mellon Bank N.A.
National Bank of Canada
National Westminster Bank Plc
The Sanwa Bank, Ltd., The Chicago Branch
Swiss Bank Corporation, New York Branch
Union Bank of Switzerland (Chicago Branch)
The Yasuda Trust & Banking Co., Ltd.
<PAGE>
SCHEDULE II TO
COMMITMENT TRANSFER AGREEMENT
None
<PAGE>
EXHIBIT A-1 TO
COMMITMENT TRANSFER AGREEMENT
[FORM OF OPINION OF SIMPSON THACHER & BARTLETT]
April 26, 1996
To: Chemical Bank, as administrative agent under the
Agreement referred to below
270 Park Avenue
New York, New York 10017
The Banks listed on Schedule I hereto
Re: The Commitment Transfer Agreement, dated as of April 26,
1996 (the "Agreement"), among Chrysler Financial
Corporation (the "Company"), the Banks parties thereto
and Chemical Bank, as administrative agent (the
"Administrative Agent").
Ladies and Gentlemen:
We have acted as counsel to the Administrative Agent in
connection with the preparation, execution and delivery of the Agreement.
This opinion is delivered to you pursuant to subsection
4.1(e)(i) of the Agreement. Unless otherwise defined herein, terms defined in
the Agreement and used herein shall have the respective meanings set forth in
the Agreement.
In arriving at the opinion expressed below, we have examined
(a) a counterpart of the Agreement, signed by the Company and the
Administrative Agent and (b) such documents as we have deemed necessary or
appropriate for the purposes of this opinion.
In such examination, we have assumed the genuineness of all
signatures, the authenticity, regularity and completeness of all documents
submitted to us as originals, the completeness of all documents submitted to
us as certified, conformed or photostatic copies and the conformity of such
documents to the original documents.
We have also assumed that the Agreement has been duly
authorized, executed and delivered by the Company, that the Company is duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to execute, deliver
and perform its obligations under the Agreement, that the Company is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, that the execution, delivery and performance by the Company of the
Agreement have been duly authorized by all necessary corporate action on the
part of the Company, do
<PAGE>
2
not contravene its certificate of incorporation or by-laws or similar
organizational documents or violate, or require any consent not obtained
under, any applicable law or regulation or any order, writ, injunction or
decree of any court or other Governmental Authority binding upon the Company
and do not violate, or require any consent not obtained under, any contractual
obligation applicable to or binding upon the Company, and that the Agreement
constitutes a valid and legally binding obligation of the Banks.
Based upon the foregoing, and subject to the qualifications and
comments set forth below, we are of the opinion that, insofar as the law of
the State of New York is concerned, the Agreement constitutes a valid and
legally binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing, except that we express no
opinion as to (a) subsection 9.15(b) of the Agreement insofar as it relates to
an action brought in the United States District Court for the Southern
District of New York and note that such matters may be raised by such court;
(b) any indemnification obligations of the Company under the Agreement to the
extent such obligations might be deemed to be inconsistent with public policy;
(c) any provision of the Agreement that purports to establish an evidentiary
standard for determinations by the Banks or the Administrative Agent; or (d)
any setoff right contained in subsection 9.8 or 9.9 of the Agreement
authorizing any Bank to set off and apply deposits at any time held, and any
other indebtedness at any time owing, by such Bank to or for the account of
any party against any participation transferred to or by such Bank.
We are members of the Bar of the State of New York and we do
not express any opinion herein concerning any law other than the law of the
State of New York.
This opinion has been rendered solely for your benefit in
connection with the Agreement and the transactions contemplated thereby and
may not be relied upon by you for any other purpose, or relied upon by any
other person, firm or corporation without our prior written consent or
furnished to any other person, firm or corporation other than any assignee or
participant under the Agreement or any bank examiner or other regulatory
authority without our prior written consent.
Very truly yours,
SIMPSON THACHER & BARTLETT
<PAGE>
SCHEDULE I
THE BANKS
<PAGE>
EXHIBIT A-2 TO
COMMITMENT TRANSFER AGREEMENT
[FORM OF OPINION OF GENERAL COUNSEL
of
THE COMPANY]
April 26, 1996
To: Chemical Bank, as administrative agent
270 Park Avenue
New York, New York 10017
The Banks parties to the Agreement referred to below
Dear Sirs:
I am General Counsel of Chrysler Financial Corporation, a
Michigan corporation (the "Company"), and have acted as counsel to the Company
in connection with the execution and delivery of the Commitment Transfer
Agreement, dated as of April 26, 1996 (the "Agreement"), among Chrysler
Financial Corporation (the "Company"), the Banks parties thereto, and Chemical
Bank, as administrative agent. This opinion is delivered to you pursuant to
subsection 4.1(e)(ii) of the Agreement. Terms used herein which are defined in
the Agreement shall have the respective meanings set forth in the Agreement,
unless otherwise defined herein.
In connection with this opinion, I, or members of my staff,
have examined executed copies (or telecopies of signature pages) of the
Agreement and such corporate documents and records of the Company, and
certificates of public officials and officers of the Company, and such other
documents, as I, or members of my staff, have deemed necessary or appropriate
for the purposes of this opinion. For the purposes of this opinion, I have
assumed (i) the genuineness of all signatures of, and the authority of,
Persons signing the Agreement on behalf of parties thereto other than the
Company, (ii) the authenticity of all documents submitted to me as originals,
(iii) the conformity to authentic original documents of all documents
submitted to me as certified, conformed or photostatic copies and (iv) the due
authorization, execution and delivery of the Agreement by the parties thereto
other than Company.
My opinions expressed herein are limited to the laws of the
State of Michigan, the State of New York, the General Corporation Law of the
State of Delaware, and the Federal laws of the United States of America (the
"Specified Laws"), and I do not express any opinion herein concerning any
other law (including, without limitation, any law of any political subdivision
of the foregoing States). For the purposes of this opinion I have
<PAGE>
2
assumed that the laws of the State of New York are identical to the laws of
the State of Michigan.
Based upon the foregoing and subject to the qualifications set
forth herein, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Michigan
and 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
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.
2. The Agreement has been duly executed and delivered on behalf
of the Company. The execution, delivery and performance by the Company
of the Agreement (a) are within the corporate powers of the Company,
(b) have been duly authorized by all necessary corporate action, and
(c) do not contravene (i) the charter or by-laws of the Company, (ii)
any law, rule, or regulation under the Specified Laws presently in
effect which affects or binds the Company or any of its respective
properties (including, without limitation, Regulations G, T, U and X
of the Board of Governors of the Federal Reserve System) or, to the
best of my knowledge, any order, writ, judgment, injunction, decree,
determination or award presently in effect which affects or binds the
Company or any of its respective properties or (iii) to the best of my
knowledge, any Contractual Obligation to which the Company is a party;
except to the extent that such contravention, in case of either clause
(ii) or (iii), 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 the Agreement or on the rights and
remedies of the Administrative Agent or the Banks thereunder.
3. No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority under the
Specified Laws is required to be obtained or made by the Company for
the due execution, delivery and performance by the Company of the
Agreement.
4. To the best of my knowledge after due inquiry, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or threatened by or against the
Company or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to the Agreement, 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.
<PAGE>
3
5. The Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
6. 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.
7. Neither the Administrative Agent nor the Banks will become
subject to any income, franchise or other tax imposed by a
Governmental Authority of the State of Michigan solely by reason of
the transactions contemplated by the Agreement.
I express no opinion as to (a) the effect of any laws other
than the Specified Laws which limit the rates of interest legally chargeable
or collectible; (b) any obligation of any party to the Agreement to indemnify
other Persons to the extent such obligation might be deemed to be inconsistent
with public policy; (c) any setoff right contained in subsection 9.9 of the
Agreement authorizing any Bank to set off and apply deposits at any time held,
and any other indebtedness at any time owing, by such Bank to or for the
account of any party against any participation transferred to or by such Bank;
(d) any agreement to pay interest on interest; (e) subsection 9.15(b) of the
Agreement insofar as it relates to an action brought in the United States
District Court for the Southern District of New York and note that such
matters may be raised by such court; or (f) any provision of the Agreement
that purports to establish an evidentiary standard for determinations by the
Banks.
This opinion is given as of the date hereof and I undertake no
obligation to notify you of any changes in law or fact occurring after the
date hereof. This opinion is furnished to you solely in connection with the
execution and delivery of the Agreement and may not be furnished to any other
person, firm or corporation other than any assignee or participant under the
Agreement or any bank examiner or other regulatory authority without my prior
written consent and may not be relied upon by any one other than you, the
other counsel providing legal opinions to you pursuant to subsection 4.1(e) of
the Agreement, and by you and such other counsel only in connection with the
execution and delivery of the Agreement.
Very truly yours,
<PAGE>
EXHIBIT B TO
COMMITMENT TRANSFER AGREEMENT
[FORM OF NEW BANK SUPPLEMENT]
SUPPLEMENT, dated ________, to the Commitment Transfer
Agreement, dated as of April 26, 1996 (as amended, supplemented or otherwise
modified from time to time, the "Agreement"), among CHRYSLER FINANCIAL
CORPORATION (the "Company"), the Banks parties thereto and CHEMICAL BANK, as
administrative agent.
W I T N E S S E T H :
WHEREAS, the Agreement provides in subsection 9.10 that any
commercial bank, although not originally a party thereto, may become a party
to the Agreement with the consent of the Company by executing and delivering
to the Company and the Administrative Agent a supplement to the Agreement in
substantially the form of this Supplement; and
WHEREAS, the undersigned was not an original party to the
Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Agreement, and agrees that it shall, on the date this Supplement is
accepted by the Company and the Administrative Agent, become a Bank
for all purposes of the Agreement to the same extent as if originally
a party thereto.
2. The amount of the Commitment of the undersigned shall be
$___________.
3. The undersigned's address for notices for the purposes of
the Agreement is as follows:
4. The undersigned's Chrysler Financial Corporation Clearing
Account No. is _________, and the name of the Automated Clearing
House member at which such Clearing Account is located is
_____________.
5. Terms defined in the Agreement shall have their defined
meanings when used herein.
<PAGE>
2
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be executed and delivered by a duly authorized officer on the date first
above written.
[INSERT NAME OF BANK]
By____________________________
Title:
Accepted this ____ day of
_____________, 199_
CHRYSLER FINANCIAL CORPORATION
By___________________________
Title:
Accepted this ___ day of
_____________, 199_
CHEMICAL BANK, as Administrative Agent
By___________________________
Title:
<PAGE>
EXHIBIT C TO
COMMITMENT TRANSFER AGREEMENT
[FORM OF ADDENDUM]
ADDENDUM TO COMMITMENT TRANSFER AGREEMENT
The undersigned Bank (i) agrees to all of the provisions of the
Commitment Transfer Agreement dated as of April 26, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Commitment Transfer
Agreement") among Chrysler Financial Corporation (the "Company"), the Banks
parties thereto, and Chemical Bank, as administrative agent, and (ii) becomes
a party thereto, as a Bank, with an obligation to make Loans to the Company in
an aggregate principal amount not to exceed such Bank's Transferred Commitment
at such time set forth opposite such Bank's name in the most recent notice
with respect thereto delivered by Chrysler Corporation pursuant to the
Chrysler Agreement, as such amount may be reduced or increased from time to
time as provided in the Commitment Transfer Agreement. Unless otherwise
defined herein, capitalized terms defined in the Commitment Transfer Agreement
shall have their respective defined meanings herein.
Set forth below is our address for notices for the purposes of
subsection 9.2 of the Commitment Transfer Agreement:
Address for Notices: __________________________________________
__________________________________________
Attention:
Telecopy:
Clearing Account No.________________________________________________
Name of Automated Clearing House Member
at which Clearing Account is Located:_______________________________
Name of Bank ____________________________________
As of April 26, 1996 By____________________________________________
Title:
<PAGE>
EXHIBIT D TO
COMMITMENT TRANSFER AGREEMENT
[FORM OF CLOSING CERTIFICATE]
CLOSING CERTIFICATE
Pursuant to subsections 4.1(b), (c) and (d) of the Commitment
Transfer Agreement dated as of April 26, 1996 (the "Agreement"; unless
otherwise defined herein, terms defined in the Agreement and used herein shall
have the meanings given to them in the Agreement) among CHRYSLER FINANCIAL
CORPORATION (the "Company"), the Banks parties thereto, and CHEMICAL BANK, as
administrative agent, the undersigned ________ of the Company hereby certifies
as follows:
1. The representations and warranties of the Company contained
in the Agreement or in any certificate, document or financial or other
statement furnished by or on behalf of the Company pursuant to or in
connection with the Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as if made
on the date hereof except for representations and warranties stated to
relate to a specific earlier date, in which case such representations
and warranties were true and correct in all material respects as of
such earlier date;
2. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to any Loans
to be made on the date hereof; and
3. ____________________ is and at all times since
_____________________ 19__, has been the duly elected and qualified
[Assistant] Secretary of the Company and the signature set forth on
the signature line for such officer below is such officer's true and
genuine signature;
and the undersigned [Assistant] Secretary of the Company hereby certifies as
follows:
4. There are no liquidation or dissolution proceedings pending
or to my knowledge threatened against the Company, nor to my knowledge
has any other event occurred affecting or threatening the corporate
existence of the Company;
5. The Company is a corporation duly organized, validly
existing and in good standing under the laws of Michigan;
6. Attached hereto as Exhibit A is a complete and correct copy
of resolutions duly adopted by the Board of Directors (or a duly
authorized committee thereof) of the Company on _________, 19__; such
resolutions have not in any way been amended, modified, revoked or
rescinded and have been in full force and effect since their adoption
to and including the date hereof and are now in full force and effect;
such resolutions are the only corporate proceedings of the Company now
in force relating to or affecting the matters referred to therein;
7. Attached hereto as Exhibit B is a complete and correct copy
of the by-laws of the Company as in effect at all times since
_________________, 19__ to and including the
<PAGE>
2
date hereof; and attached hereto as Exhibit C is a true and complete
copy of the certificate of incorporation of the Company as in effect
at all times since ___________________, 19__ to and including the date
hereof; and
8. The following persons are now duly elected and qualified
officers of the Company holding the offices indicated next to their
respective names below, and such officers have held such offices with
the Company at all times since ________________, 19__ to and including
the date hereof, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such
officers, and each of such officers is duly authorized to execute and
deliver on behalf of the Company the Agreement and any certificate or
other document to be delivered by the Company pursuant to the
Agreement:
Name Office Signature
______________________ [________] _____________________
______________________ [Assistant] Secretary _____________________
IN WITNESS WHEREOF, the undersigned have hereto set our names.
_____________________________
Title: [___________] Title: [Assistant] Secretary
Date: April 26, 1996
<PAGE>
EXHIBIT E TO
COMMITMENT TRANSFER AGREEMENT
[FORM OF NOTE]
NOTE
$ _______________ New York, New York
_________ __, 19__
FOR VALUE RECEIVED, the undersigned, CHRYSLER FINANCIAL
CORPORATION, a Michigan corporation (the "Company"), hereby promises to pay
to the order of (the "Bank") on the Termination Date at the office of
Chemical Bank located at 270 Park Avenue, New York, New York 10017, in lawful
money of the United States of America and in immediately available funds, the
principal amount of (a) ____________ Dollars ($________) or, if less, (b) the
aggregate unpaid principal amount of all Loans made by the Bank to the
Company pursuant to subsection 2.1 of the Agreement as hereinafter defined.
The Company further agrees to pay interest in like money at such office on
the unpaid principal amount hereof from time to time outstanding at the rates
and on the dates determined in accordance with subsection 2.7 of such
Agreement.
The holder of this note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof, the date, Type and amount of each
Loan made pursuant to the Agreement and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof, each conversion of
all or a portion thereof to another Type and, in the case of Eurodollar Loans,
the length of each Interest Period with respect thereto. Each such endorsement
shall constitute prima facie evidence of the accuracy of the information
endorsed. The failure to make any such endorsement or any error in such
endorsement shall not affect the obligations of the Company in respect of any
Loan.
This note (a) has been issued pursuant to subsection 9.7(e) of the
Commitment Transfer Agreement, dated as of April 26, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Agreement"), among
the Company, the Bank, the other banks parties thereto and Chemical Bank, as
administrative agent, (b) is subject to the provisions of the Agreement and
(c) is subject to prepayment in whole or in part as provided in the Agreement.
Upon the occurrence of any one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this note
shall become, or may be declared to be, immediately due and payable, all as
provided in the Agreement.
All parties now and hereafter liable with respect to this note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Agreement and
used herein shall have the meanings given to them in the Agreement.
<PAGE>
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
CHRYSLER FINANCIAL CORPORATION
By:___________________________
Title:
<PAGE>
<TABLE>
<CAPTION>
Schedule A to Note
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
(4) (5)
(2) Amount of Base Amount of (6) (7)
Balance Forward Rate Loans Eurodollar Loans Amount of Base Unpaid Principal
from Column (7) of (3) Converted into Converted into Rate Loans Balance Base (8)
(1) Preceding Amount of Base Eurodollar Loans Base Rate Loans Repaid Rate Notation
Date Line Rate Loan (add) (subtract) (add) (subtract) Loans Made By
------- ------------------ -------------- ---------------- --------------- -------------- --------------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
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</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Schedule B to Note
EURODOLLAR LOANS AND REPAYMENT OF EURODOLLAR LOANS
(5)
Amount of (6)
Eurodollar Amount of
(2) Loans Base Rate (7) (8)
Balance (3) Converted Loans Amount of Unpaid Principal
Forward from Amount of (4) into Base Converted into Eurodollar Balance (9)
(1) Column (8) of Eurodollar Interest Rate Loans Eurodollar Loans Repaid Eurodollar Notation
Date Preceding Line Loan (add) Period (subtract) Loans (add) (subtract) Loans Made By
---- -------------- ---------- -------- ---------- -------------- ------------ --------------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
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</TABLE>
Exhibit 10-OOOO
Conformed Copy
==============================================================================
RECEIVABLES PURCHASE AGREEMENT
Series 1996-1
dated as of May 30, 1996
AMONG
PREMIER AUTO RECEIVABLES COMPANY,
AS PREMIER,
CHRYSLER FINANCIAL CORPORATION,
INDIVIDUALLY AND AS THE SERVICER,
AND
ABN AMRO BANK N.V.,
AS THE AGENT
==============================================================================
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<PAGE>
TABLE OF CONTENTS
SECTION
PAGE
ARTICLE I DEFINITIONS
1
Section 1.1. Defined Terms
1
ARTICLE II TRANSFER, PAYMENTS AND SETTLEMENTS
10
Section 2.1. Agreement to Purchase and Sell
10
Section 2.2. Selection of Tranche Periods and Tranche Rates
10
Section 2.3. Fees and Other Costs and Expenses
10
Section 2.4. Payments
10
Section 2.5. Optional Repurchase
11
Section 2.6. Reduction of Commitment Amount
11
Section 2.7. Certain Agreements of CFC
11
ARTICLE III REPRESENTATIONS AND WARRANTIES
12
Section 3.1. Affiliated Entities' Representations
and Warranties
12
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<PAGE>
Section 3.2. Receivables Representations and Warranties
14
ARTICLE IV CONDITIONS PRECEDENT
17
Section 4.1. Conditions to Closing
17
ARTICLE V COVENANTS
18
Section 5.1. Affirmative Covenants of Premier
18
Section 5.2. Negative Covenants of Premier
20
Section 5.3. Covenants of Premier and CFC
21
ARTICLE VI INDEMNIFICATION
22
Section 6.1. Indemnities
22
Section 6.2. Tax Indemnification and Characterization
23
Section 6.3. Increased Cost and Reduced Return
24
Section 6.4. Other Costs and Expenses
26
Section 6.5. Withholding Taxes
26
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<PAGE>
Section 6.6. Allocations
27
ARTICLE VII MISCELLANEOUS
27
Section 7.1. Term of Agreement
27
Section 7.2. Waivers; Amendments
27
Section 7.3. Notices
27
Section 7.4. Governing Law; Submission to Jurisdiction
28
Section 7.5. Further Assurances
28
Section 7.6. Waiver of Confidentiality
28
Section 7.7. Confidentiality of Agreement
29
Section 7.8. Limitation of Liability
29
Section 7.9. Limitations Regarding Premier
29
Section 7.10. Enforceability of Receivables
30
Section 7.11. Third-Party Beneficiaries
30
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<PAGE>
Section 7.12. Agreement to Generic Provisions and
Standard Provisions
30
EXHIBITS DESCRIPTION
Exhibit A Location of Records
Exhibit B Form of Premier Opinion
Exhibit C Pricing Letter
SCHEDULES DESCRIPTION
Schedule I Generic Provisions
Schedule II Standard Provision
Schedule III Receivables
-5-
<PAGE>
RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT, dated as of May 30, 1996, among the
Agent, CFC (individually and as the Servicer), and Premier.
PRELIMINARY STATEMENTS
WHEREAS, the Agent desires to purchase a portfolio of receivables
arising in connection with automobile retail installment sale contracts
generated by Chrysler Financial Corporation in the ordinary course of business
and sold to Premier;
WHEREAS, Premier is willing to sell such receivables to the
Purchasers through the Agent; and
WHEREAS, the Servicer is willing to service such receivables pursuant
to the Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. The following terms shall have the
meanings set forth or referred to below:
"ABN AMRO" shall mean ABN AMRO Bank N.V., in its individual
capacity and not in its capacity as the Agent.
"Adverse Claim" shall mean, for any assets or properties of a
Person, a lien, security interest, charge, mortgage, pledge,
hypothecation, assignment or encumbrance, or any other right or claim,
in, of or on such assets or properties, except those in favor of the
Agent.
"Affiliated Entities" shall mean CFC and Premier.
"Agent" shall mean ABN AMRO Bank N.V., as agent for the
Purchasers.
"Agent's Account" shall mean the Agent's account number
651041919241 at ABN AMRO.
"Aggregate Commitment" shall mean an amount equal to Four
Hundred Million
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<PAGE>
Dollars ($400,000,000), as such amount may be reduced pursuant to
Section 2.6.
"Aggregate Net Investment" shall mean the sum of the
Investments for all Purchasers.
"Aggregate Net Investment (Matured Value)" shall mean the sum
of (i) the sum of the Investments for all Purchasers other than
Windmill, plus (ii) the Matured Value of the Investment of Windmill.
"Aggregate Unpaids" shall mean an amount equal to the sum of
(i) the aggregate accrued and unpaid Discount with respect to all
Tranche Periods, plus (ii) the Aggregate Net Investment, plus (iii)
all other amounts owed (whether due or accrued) under the Transaction
Documents by any Affiliated Entity to any Person.
"Agreement" or "Purchase Agreement" shall mean this
Receivables Purchase Agreement.
"Amount Financed" shall mean, for any Receivable, the amount
advanced under the Receivable toward the purchase price of the
Financed Vehicle and any costs, exclusive of any amount allocable to
the premium of force-placed physical damage insurance covering the
Financed Vehicle.
"Annual Percentage Rate" shall mean, for any Receivable, the
annual rate of finance charges stated in the related Contract.
"Assets" shall mean every Receivable and Related Security with
respect thereto, every Collection with respect thereto (after May 22,
1996 for all simple interest Receivables and after May 31, 1996 for
all precomputed Receivables) and proceeds of any of the foregoing.
"Bankruptcy Event" shall mean, for any Person, that (i) such
Person shall make a general assignment for the benefit of creditors;
or any proceeding shall be instituted by or against such Person
seeking to adjudicate it bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or
any substantial part of its property and, where such
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<PAGE>
proceeding was instituted against such Person, such proceeding shall
not have been dismissed or stayed for a period of thirty (30) days, or
any of the actions sought in such proceeding (including the entry of
an order for relief against, or appointment of a receiver, trustee,
custodian or other similar official for, such Person or any
substantial part of such Person's property) shall occur or (ii) such
Person shall take any corporate action to authorize any of the actions
set forth in clause (i) in this definition.
"Business Day" shall mean any day (other than Saturday, Sunday
and any day on which banking institutions located in New York, New
York or Chicago, Illinois are authorized or required to close and
excluding any day which is a holiday on the Federal Reserve calendar)
and, with respect to any matters relating to eurodollar funding, a day
on which dealings in Dollars are carried on in the London interbank
market.
"Cap" shall mean the interest rate cap agreement, dated as of
the date hereof, by Chrysler Financial Corporation in favor of the
Agent executed under the Master Agreement, dated as of the date
hereof, between Chrysler Financial Corporation and the Agent.
"CFC" shall mean Chrysler Financial Corporation, a Michigan
corporation.
"Collection" shall mean (i) for any Receivable, all payments
made by, or on behalf of, the related Obligor (including any Finance
Charges paid), all Liquidation Proceeds and any amount the Servicer is
deemed to have received, or obligated to remit, pursuant to Section
2.16 of the Servicing Agreement or otherwise, each with respect to
such Receivable and (ii) for all Receivables, the aggregate amount
described in clause (i) for all Receivables, amounts received under
the Cap or any successor or substitute therefor and interest paid on
amounts deposited in, or credited to, the Agent's Account.
"Contract" shall mean, for any Receivable, all retail
installment sales contracts identified and listed on Schedule III
(which Schedule III may be in the form of microfiche).
"Dealer" shall mean the dealer who sold a Financed Vehicle and
who originated, and then sold to CFC under an existing agreement
between such dealer and CFC, the related Receivable.
-8-
<PAGE>
"Designated Financial Officer" shall mean, for any Person, any
vice president, controller, assistant controller, treasurer, assistant
treasurer or principal financial officer of such Person.
"Discount" shall mean, for any Tranche Period:
TR x TA x AD
----
Year
Where "TR" is equal to the Tranche Rate applicable to such Tranche
Period; "TA" is equal to the Dollar amount of the Investment allocated
to such Tranche Period; "AD" is equal to the actual number of days
elapsed during such Tranche Period; and "Year" is equal to the number
three hundred sixty (360); provided, however, that if such Tranche
Rate is the Prime Rate such number shall be the actual number of days
in the applicable calendar year; and shall also mean the Early
Collection Fee (as defined in the Pricing Letter).
"Distribution Date": Refer to the Servicing Agreement.
"Dollar" and "$" shall mean lawful money of the United States
of America.
"Effective Date": Refer to Section 4.1.
"Excess Finance Charge Collections" shall mean, at any time,
Collections received by the Servicer that are not Principal
Collections and that are in excess of the amount necessary to pay all
amounts owing under clauses First through Third of Section 2.15(a)(i)
of the Servicing Agreement, so that they will be available to reduce
the Aggregate Net Investment under clause Fourth of such Section
2.15(a)(i) of the Servicing Agreement.
"Federal Bankruptcy Code" shall mean the Bankruptcy Code of
the United States of America codified in Title 11 of the United States
Code.
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate per annum equal, for each day during such
period, to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) for such day on transactions
-9-
<PAGE>
received by ABN AMRO from three (3) federal funds brokers of
recognized standing selected by it.
"Fee Letter" shall mean the letter agreement, dated the date
hereof, among Premier, CFC, ABN AMRO and the other parties thereto.
For purposes of this Agreement and references to this Agreement, the
Fee Letter shall be a supplement to this Agreement.
"Finance Charges" shall mean, for any Contract, any finance,
interest or similar or other charges owing by an Obligor pursuant to
such Contract (excluding, however, all amounts described in the last
sentence of Section 2.8(a) of the Servicing Agreement).
"Financed Vehicle" shall mean, for any Receivable, the
automobile or light-duty truck, together with all accessions thereto,
securing the Obligor's indebtedness under such Receivable.
"Funding Agreement" shall mean any agreement or instrument
executed by Windmill and executed by or in favor of any Windmill
Funding Source and this Agreement.
"Governmental Authority" shall mean any Federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, or any court or any arbitrator, in each
case whether in the USA or foreign.
"Indebtedness" shall mean, for any Person, such Person's (i)
obligations for borrowed money, (ii) obligations representing the
deferred purchase price of property (other than accounts payable
arising in the ordinary course of such Person's business on terms
customary in the trade), (iii) obligations (including leases), whether
or not assumed, secured by a lien on, or payable out of the proceeds
or production from, property now or hereafter owned or acquired by
such Person, (iv) obligations which are evidenced by bonds,
debentures, notes, acceptances or other instruments, (v) capitalized
lease obligations and (vi) obligations pursuant to a guaranty.
"Indemnified Losses": Refer to Section 6.1.
"Investment" shall mean, for each Purchaser, the difference of
(a) the sum of (i) the portion of the Purchase Payment made by, or on
behalf of, such Purchaser, plus (ii) the
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<PAGE>
aggregate amount of any payments or exchanges made by, or on behalf
of, such Purchaser to any other Purchaser (in connection with such
Purchaser's acquisition of an interest in the Assets from another
Purchaser), plus (iii) all accrued and unpaid Discount owed to such
Purchaser which has been paid or deferred by such Purchaser in
accordance with Section 2.4(a), less (b) the aggregate amount of
Collections and other amounts (including payments received and amounts
received from another Purchaser) received or exchanged (and not
rescinded or returned) and applied by the Agent or such Purchaser to
reduce such Purchaser's Investment.
"Liquidation Proceeds": Refer to the Servicing Agreement.
"Matured Value" shall mean, of any Investment, the sum of (a)
such Investment, plus (b) all unpaid Discount which is then scheduled
to become due (whether or not then due) on such Investment during all
Tranche Periods applicable to all or any part of such Investment, plus
(c) all unpaid fees and other amounts which are then known and
scheduled to become due (whether or not then due) on, or in connection
with, such Investment during all Tranche Periods applicable to all or
any part of such Investment.
"Monthly Report": Refer to the Servicing Agreement.
"Net Receivables Balance" shall mean the unpaid principal
balance of all Receivables excluding Receivables repurchased by any
Affiliated Entity pursuant to the Transaction Documents for which the
Agent has received the net proceeds therefrom and Receivables
liquidated by the Servicer through the sale of a Financed Vehicle or
otherwise (after all then available anticipated means of recovery
thereon have been exhausted) for which the Agent has received the net
proceeds therefrom.
"Obligor" shall mean, for any Receivable, the Person obligated
to make payments on such Receivable or any guarantor of such
obligation.
"Person" shall mean individuals, partnerships, limited
liability companies, corporations, business trusts, joint stock
companies, trusts, unincorporated associations, joint ventures,
Governmental Authorities or any other entity of whatever nature.
"Portfolio Loss Ratio" shall mean, on each Distribution Date,
the average (expressed as a percentage) of (i) the unpaid principal
balance of all Receivables which are
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<PAGE>
determined to be uncollectible by the Servicer in a calendar month,
less any Liquidation Proceeds received in such month, divided by (ii)
the sum of Collections received during such month on all Receivables,
as determined with respect to each of the four (4) most recently
completed calendar months (or such shorter number of months as have
elapsed since the date hereof).
"Premier" shall mean Premier Auto Receivables Company, a
Delaware corporation.
"Pricing Letter" shall mean the letter agreement, dated the
date hereof, among Premier, CFC, ABN AMRO and the other parties
thereto. For purposes of this Agreement and references to this
Agreement, the Pricing Letter shall be a supplement to this Agreement.
"Prime Rate" shall mean a rate per annum equal to the greater
(redetermined daily) of (i) the floating commercial loan rate of ABN
AMRO for Dollars announced from time to time and (ii) the Federal
Funds Effective Rate plus three fourths of one percent (0.75%).
"Principal Collections": Refer to the Servicing Agreement.
"Purchase Date" shall mean the Business Day on which the
Purchase Payment is made.
"Purchase Payment" shall mean the payment of Three Hundred
Ninety Six Million Six Hundred Sixty Six Thousand Six Hundred Sixty
Seven Dollars ($396,666,667) by or on behalf of the Purchasers to
Premier on the Purchase Date.
"Purchasers" shall mean Windmill and each other Person which,
from time to time, has purchased, or agreed (on a committed or
uncommitted basis) to purchase, an interest in the Assets.
"Receivable" shall mean each receivable listed on Schedule
III.
"receivable" shall mean any indebtedness and other obligations
owed to Premier (without giving effect to any transfer or conveyance
to the Agent hereunder) or any right of Premier to payment from or on
behalf of an Obligor whether constituting an account, chattel paper,
instrument or general intangible, arising in connection with the sale
of goods
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<PAGE>
or the rendering of services by a Dealer, including the obligation to
pay any Finance Charges with respect thereto. Indebtedness and other
rights and obligations arising from any one transaction, including
indebtedness and other rights and obligations represented by an
individual promissory note or installment purchase agreement, shall
constitute a receivable separate from a receivable consisting of the
indebtedness and other rights and obligations arising from any other
transaction.
"Records" shall mean, for any Receivable, all Contracts and
other documents, books, records and other information relating to such
Receivable and the related Obligor (including the original account
receivable, the credit applications and the certificate of title for
the related Financed Vehicle).
"Related Security" shall mean, for any Receivable, (i) all of
Premier's right, title and interest in the Financed Vehicles
(including returned Financed Vehicles, if any) the sale of which by a
Dealer gave rise to such Receivable, and all insurance contracts with
respect thereto, (ii) all other security interests or liens and
property subject thereto, if any, purporting to secure payment of such
Receivable, together with all financing statements signed by an
Obligor describing any collateral securing such Receivable, (iii) all
guaranties, letters of credit, insurance and other agreements
supporting or securing payment of such Receivable (including any
recourse to Dealers), (iv) all service contracts and other contracts
and agreements related to such Receivable and (v) all Records related
to such Receivable.
"Scheduled Payment" shall mean, for any Receivable, that
portion of the payment required to be made by the Obligor during the
respective calendar month sufficient to amortize the unpaid principal
balance under the actuarial method over the term of the Receivable and
to provide interest at the Annual Percentage Rate.
"Servicer" shall mean CFC in its capacity as Servicer.
"Servicer Fee": Refer to the Servicing Agreement.
"Servicer Termination Event": Refer to the Servicing
Agreement.
"Servicing Agreement" shall mean the Servicing Agreement,
dated as of the date hereof, between the Servicer, Premier and the
Agent.
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<PAGE>
"Significant Event" shall mean the occurrence of any one or
more of the following:
(a) (i) the Servicer (or any sub-collection agent)
shall fail to perform or observe any term, covenant or
agreement under any Transaction Document (other than as
referred to in clause (ii)), and such failure shall remain
unremedied for three (3) Business Days or (ii) any Affiliated
Entity shall fail to make any payment or other transfer of
funds to be made by it under any Transaction Document when
due; or
(b) any Affiliated Entity shall fail to observe or
perform any covenant or agreement contained in Section 5.1,
5.2 or 5.3; provided, however, that no such failure with
respect to any receivable shall constitute a Significant
Event if the obligations under Section 2.16 of the Servicing
Agreement, with respect thereto, shall have been satisfied;
or
(c) any representation, warranty, certification or
statement made by, or deemed to be made by, any Affiliated
Entity in, or pursuant to, any Transaction Document or any
certificate, report, statement or other document delivered
pursuant to any Transaction Document shall prove to have been
incorrect in any material respect when made or deemed made;
provided, however, that no such breach with respect to any
receivable shall constitute a Significant Event if the
obligations under Section 2.16 of the Servicing Agreement,
with respect thereto, shall have been satisfied; or
(d) any Affiliated Entity shall default in the
performance of any undertaking under any Transaction Document
(other than those covered by clause (a) or (b)), and such
default shall continue for two (2) Business Days; or
(e) failure of any Affiliated Entity to pay any
Indebtedness (except for any such Indebtedness in an
aggregate principal amount at any one time outstanding of
up to (i) Fifty Million Dollars ($50,000,000) in the
case of CFC or (ii) One Million Dollars ($1,000,000) in
the case of Premier) when due; or the default by any
Affiliated Entity in the performance of any term, provision
or condition contained in any agreement under which any
such Indebtedness was created or is governed, the effect
of which is to cause, or to permit the holders of
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such Indebtedness to cause, such Indebtedness to become
due prior to its stated maturity; or any such
Indebtedness shall be declared to be due and payable
or required to be prepaid (other than by a regularly
scheduled payment) prior to the date of maturity
thereof; or there shall occur a default, termination
event or similar event by or with respect to any
Affiliated Entity under any agreement providing for
the sale, transfer or conveyance by any Affiliated Entity
of any of its financial assets; or
(f) A Bankruptcy Event shall occur with respect to any
Affiliated Entity or any of their respective subsidiaries;
or
(g) any Affiliated Entity shall generally not pay its
debts as such debts become due or shall admit in writing its
inability to pay its debts generally; or
(h) the Portfolio Loss Ratio shall exceed five and one
half percent (5.5%); or
(i) the Net Receivables Balance plus all Principal
Collections and Excess Finance Charge Collections received
by the Servicer and not yet applied to reduce Aggregate Net
Investment at any time shall be less than one hundred and
four percent (104%) of the Aggregate Net Investment at such
time, and such failure shall continue for one (1) Business
Day after any Affiliated Entity has knowledge thereof; or
(j) there shall occur a material adverse change in the
creditworthiness, financial condition, business or
operations of CFC or in the ability of any Affiliated Entity
to perform its obligations under any Transaction Document to
which it is (or is stated to be) a party, including the
collection of the Receivables or in the enforceability or
collectibility of the Receivables; or
(k) any Affiliated Entity shall, directly or
indirectly, disaffirm or contest in any manner the
effectiveness, validity, binding nature or enforceability of
any of the Transaction Documents, or any of the Transaction
Documents shall fail to be the binding and enforceable
obligation of any Affiliated Entity that is (or is stated to
be) a party thereto; or
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(l) a Servicer Termination Event shall occur; or
(m) this Agreement shall fail to vest and maintain
vested in the Agent a valid first priority perfected
ownership interest in the Assets; or
(n) CFC shall breach, or fail to perform under,
Section 5.2 of the Servicing Agreement, and such breach or
failure shall remain unremedied for two (2) Business Days.
"Taxes" shall mean all taxes, charges, fees, levies or other
assessments including income, gross receipts, profits,
withholding, excise, property, sales, use, license, occupation and
franchise taxes (including, in each such case, any interest,
penalties or additions attributable to, imposed on or with respect
to any such taxes, charges, fees or other assessments) imposed by
any jurisdiction or taxing authority (whether foreign or
domestic).
"Tranche Period": Refer to the Pricing Letter.
"Tranche Rate": Refer to the Pricing Letter.
"Transaction Documents" shall mean this Agreement and all
other financing statements, documents, instruments and agreements
executed in connection herewith and therewith.
"UCC" shall mean, with respect to any state, the Uniform
Commercial Code as from time to time in effect in such state.
"USA" shall mean the United States of America, including all
states and political subdivisions thereof.
"Windmill" shall mean Windmill Funding Corporation, a
Delaware corporation.
"Windmill Funding Source" shall mean any insurance company,
bank, financial institution or other Person providing liquidity,
back-up purchase or credit support for Windmill (including the
Purchasers other than Windmill).
ARTICLE II
TRANSFER, PAYMENTS AND SETTLEMENTS
Section 2.1. Agreement to Purchase and Sell. (a) Premier shall and
hereby does sell
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the Assets to the Agent and hereby assigns, sells, transfers
and conveys to the Agent, and the Agent hereby acquires from Premier, all of
Premier's right, title and interest in and to the Assets.
(b) As consideration for the sale of the Assets, the Agent hereby
agrees to pay to Premier the Purchase Payment (Two Hundred Thirty Eight
Thousand Two Hundred Dollars ($238,200) of which shall be paid to Chrysler
Financial Corporation in full payment by the Agent for the Cap) plus a
deferred payment equal to the residual interest in the Assets, such residual
interest in the Assets being all Assets remaining once all of the Aggregate
Unpaids and Servicer Fees have been paid, satisfied and discharged in full.
Section 2.2. Selection of Tranche Periods and Tranche Rates. Premier
hereby directs the Agent to make all Tranche Period and type of Tranche Rate
selections on Premier's behalf until Premier otherwise directs the Agent with
five (5) days prior written notice. Notwithstanding the foregoing, all Tranche
Period and type of Tranche Rate selections shall be made in accordance with
the Transaction Documents and the Agent shall have the right to terminate a
Tranche Period in accordance with the Transaction Documents. It is understood
that commercial paper rate funding may not be available, from time to time,
and will not be available during the occurrence and continuation of a
Significant Event.
Section 2.3. Fees and Other Costs and Expenses. (a) General. All per
annum fees shall accrue daily and shall be payable to the Agent monthly in
arrears. All per annum fees hereunder shall be calculated for the actual days
elapsed on the basis of a three hundred sixty (360) day year (unless otherwise
expressly provided herein).
(b) Fees. Premier shall pay to the Agent all amounts contemplated by
the Fee Letter and the Pricing Letter in accordance with the terms thereof.
Section 2.4. Payments. (a) Notwithstanding any provision contained
herein to the contrary, any amounts to be paid or transferred by Premier or
the Servicer to, or for the benefit of, any Person to whom an Aggregate Unpaid
is owed shall be paid or transferred to the Agent for the benefit of such
Person. All amounts to be paid or transferred by Premier or the Servicer under
this Agreement shall be paid or transferred in accordance with the terms
hereof no later than 11:00 a.m. (Chicago time) on the day when due in Dollars
and in immediately available funds (and if such funds are received after such
time on such day, they shall be deemed paid on the following Business Day)
into the Agent's Account. All Discount for each Tranche Period is
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payable upon the termination of such Tranche Period; provided, however, that,
if there are insufficient funds in the Agent's Account available to pay such
Discount, Premier hereby requests that the relevant Purchasers pay or defer
the payment of (by incurring additional indebtedness, using its assets or any
other means acceptable to such Purchaser) such Discount which payment or
deferral shall give rise to an increase in such Purchasers' Investments.
Notwithstanding the foregoing, Discount shall only be payable out of Assets
and the obligation to pay Discount shall not be the personal obligation of
Premier or constitute indebtedness of Premier. Any amount paid by any
Affiliated Entity under any Transaction Document which is rescinded or
returned shall not be considered paid.
(b) Premier shall, to the extent permitted by law, pay to the Agent
upon demand, for the account of the applicable Person, interest on all amounts
not paid or transferred by Premier or the Servicer when due hereunder, at a
rate equal to the Prime Rate, plus two percent (2%) per annum, calculated from
the date any such amount became due until the date paid in full.
Section 2.5. Optional Repurchase. If at any time the Aggregate Net
Investment as shown on the most recent Monthly Report is less than ten percent
(10%) of the Aggregate Net Investment as of the Effective Date, Premier may,
but shall not be obligated to, at its option exercisable upon five (5)
Business Days prior notice to the Agent, repurchase the Assets from the Agent
(without recourse, representation or warranty except for the representation
and warranty by the Agent that the Assets are being sold free and clear of any
Adverse Claim created or granted by the Agent) at a price equal to the
Aggregate Net Investment (Matured Value) plus all other Aggregate Unpaids.
Section 2.6. Reduction of Commitment Amount. On the second Business
Day following the nineteenth (19th) day of each calendar month, the unused
portion of the Aggregate Commitment shall be reduced in an amount equal to the
excess, if any, of the Aggregate Commitment over one hundred and two percent
(102%) of the Aggregate Net Investment (Matured Value) as provided in the most
recent Monthly Report and subject to verification by the Agent; provided,
however, that each reduction shall be in an amount equal to One Million
Dollars ($1,000,000) or an integral multiple thereof and the Aggregate
Commitment shall not be reduced below one hundred and two percent (102%) of
the Aggregate Net Investment (Matured Value).
Section 2.7. Certain Agreements of CFC. CFC hereby unconditionally and
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irrevocably covenants and agrees:
(i) to promptly deposit into the Agent's Account an amount
equal to any Indemnified Loss in respect of a Receivable due pursuant
to Section 6.1(a); provided, however, that such amount in respect of
any Receivable giving rise to an Indemnified Loss pursuant to Section
6.1(a) shall not exceed the unpaid principal balance of such
Receivable plus accrued interest thereon to the date of such deposit.
Such payment by the CFC shall satisfy its obligation to repurchase
such Receivable from Premier,
(ii) to pay or reimburse each Purchaser and the Agent for all
its costs and expenses (other than legal fees and disbursements)
incurred in connection with the enforcement or preservation of any
rights under this Agreement or the Servicing Agreement and for the
reasonable fees and disbursements of one firm of special counsel to
the Agent and to the Purchasers in respect of such enforcement or
preservation, and
(iii) to pay, indemnify, and hold each Purchaser and the Agent
harmless from any and all recording and filing fees and any and all
liabilities with respect to, or resulting from, any delay in paying,
stamp, excise and other taxes (excluding, with respect to any
Purchaser, net income and franchise taxes imposed with respect to net
income), if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent
under or in respect of, this Agreement or the Servicing Agreement.
The agreements in this Section 2.7 shall survive the termination of
this Agreement and the payment of the Aggregate Unpaids.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Affiliated Entities' Representations and Warranties. Each
Affiliated Entity hereby makes the following representations and warranties,
solely to the extent they relate to such Affiliated Entity, on which the Agent
and the Purchasers are deemed to have relied in acquiring the Assets. Such
representations and warranties speak as of the Purchase Date and shall survive
the sale of the Assets to the Agent hereunder.
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(a) Organization and Good Standing. Such Affiliated Entity is duly
organized and validly existing as a corporation in good standing under the
laws of its respective state of incorporation or organization, with the power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted, and
Premier had at all relevant times, and has, the power, authority and legal
right to acquire, own and sell the Receivables.
(b) Due Qualification. Such Affiliated Entity is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership
or lease of property or the conduct of its business requires such
qualifications.
(c) Power and Authority. Such Affiliated Entity has the corporate
power and authority to execute and deliver each Transaction Document to which
it is a party and to carry out the respective terms thereof; Premier has full
power, authority and legal right to sell the Assets to the Agent hereunder,
and Premier has duly authorized such transfer by all necessary corporate
action; and the execution, delivery and performance of each Transaction
Document has been duly authorized by such Affiliated Entity which is a party
thereto by all necessary corporate action.
(d) Binding Obligation. Each Transaction Document constitutes a legal,
valid and binding obligation of such Affiliated Entity which is a party
thereto enforceable in accordance with its terms.
(e) No Violation. The consummation of the transactions contemplated by
each Transaction Document and the fulfillment of the terms thereof do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles or certificate of incorporation or bylaws of such Affiliated Entity,
or any indenture, agreement or other instrument to which such Affiliated
Entity is a party or by which it is bound; or result in the creation or
imposition of any Adverse Claim upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument; or violate any law
or, to the best of such Affiliated Entity's knowledge after due inquiry, any
order, rule or regulation applicable to such Affiliated Entity of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over such Affiliated Entity
or its properties.
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(f) No Proceedings. To the best of such Affiliated Entity's knowledge
after due inquiry, there are no proceedings or investigations pending, or
threatened, before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over such Affiliated Entity
or its properties: (i) asserting the invalidity of any of the Transaction
Documents, (ii) seeking to prevent the consummation of any of the transactions
contemplated by any of the Transaction Documents or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by such Affiliated Entity of its obligations under, or the
validity or enforceability of, any of the Transaction Documents.
(g) No Insolvent Obligors. No Obligor on a Receivable is shown on any
related Record as the subject of a Bankruptcy Event.
(h) Perfection. Immediately preceding the sale of the Assets to the
Agent hereunder, the Dealers shall have been the original owners and shall
have effectively sold all the Assets to CFC, which, in turn, shall have
effectively sold all the Assets to Premier, in each case, free of any Adverse
Claim, and Premier shall be the owner of all of the receivables purported to
be Receivables hereunder and all other Assets. The Agent has a valid and
perfected first priority ownership interest in each item comprising the Assets
and in each of the Assets free and clear at all such times of any Adverse
Claim.
(i) Coverage Requirement. On the Purchase Date, the Net Receivables
Balance with respect to Receivables for which all of the representations and
warranties set forth in Section 3.2 are true and correct in all material
respects on the Purchase Date equals or exceeds one hundred five and one-half
percent (105.5%) of the Aggregate Net Investment.
(j) Significant Event. No Significant Event or any event or condition
which but for the lapse of time or the giving of notice, or both, would
constitute a Significant Event has occurred and is continuing.
(k) Schedule of Receivables. The information set forth in Schedule III
is true and correct in all material respects as of the opening of business on
the Effective Date and no selection procedures believed to be adverse to the
Agent were utilized in selecting the Receivables. The computer tape regarding
the Receivables made available to the Agent and its assigns is true and
correct in all respects.
(l) Accuracy of Information. All information heretofore furnished by,
or on behalf of,
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such Affiliated Entity to the Agent or any other Person is, and all such
information hereafter furnished will be, true and accurate in every material
respect (or based on reasonable estimates, disclosed to be estimates) and has
not omitted and will not omit any information necessary to make the statements
therein not materially misleading.
(m) Authorization. Each certificate or other document delivered by
such Affiliated Entity under any Transaction Document shall be delivered on
its behalf by a Designated Financial Officer.
Section 3.2. Receivables Representations and Warranties. Premier
hereby makes the following representations and warranties on which the Agent
and each Purchaser are deemed to have relied in acquiring the Assets. Such
representations and warranties speak as of the Purchase Date and shall survive
the sale of the Assets to the Agent hereunder.
(a) Characteristics of Receivables. Each Receivable (A) was originated
in the USA by a Dealer for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business, was fully and properly executed by
the parties thereto, was purchased by Premier from CFC, which, in turn, had
purchased such Receivable from such Dealer under an existing dealer agreement
with CFC, and was validly assigned by such Dealer to CFC in accordance with
its terms, (B) has created or shall create a valid, subsisting and enforceable
first priority security interest in favor of CFC in the Financed Vehicle,
which security interest has been assigned to Premier and is assignable by
Premier to the Agent, (C) contains customary and enforceable provisions such
that the rights and remedies of the holder thereof are adequate for
realization against the collateral of the benefits of the security and (D)
provides for level monthly payments (provided, however, that the payment in
the first or last month in the life of the Receivable may be minimally
different from the level payments) that fully amortize the Amount Financed by
maturity and yield interest at the Annual Percentage Rate.
(b) Schedule of Receivables. The information set forth in Schedule III
is true and correct in all material respects and no selection procedures
believed to be adverse to the Agent were utilized in selecting the
Receivables. The computer tape regarding the Receivables made available to the
Agent is true and correct in all respects.
(c) Compliance with Law. Each Receivable and the sale of the related
Financed Vehicle complies in all material respects with all requirements of
applicable federal, state and
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local laws and regulations thereunder, including usury laws, the federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Magnuson-Moss Warranty Act, the Federal Reserve Board's
Regulations B and Z, the Texas Consumer Credit Code and State adaptations of
the National Consumer Act and of the Uniform Consumer Credit Code, and other
consumer credit laws and equal credit opportunity and disclosure laws.
(d) Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable by
the holder thereof in accordance with its terms.
(e) No Government Obligor. None of the Receivables is due from a
Governmental Authority.
(f) Security Interest in Financed Vehicle. Immediately prior to the
sale, assignment and transfer thereof, each Receivable shall be secured by a
validly perfected first security interest in the Financed Vehicle in favor of
Premier as secured party or all necessary and appropriate actions have been
commenced that would result in the valid perfection of a first security
interest in the Financed Vehicle in favor of Premier as secured party.
(g) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released from the
lien granted under the related Receivable in whole or in part.
(h) No Waiver. No provision of a Receivable has been waived.
(i) No Amendments. No Receivable has been amended such that the amount
of the Obligor's Scheduled Payments has been increased except for increases
resulting from the inclusion of any premiums for forced-placed physical damage
insurance covering the Financed Vehicle.
(j) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Receivable.
(k) No Liens. No liens or claims have been filed for work, labor or
materials relating to a Financed Vehicle that are liens prior to, or equal or
coordinate with, the security interest in the Financed Vehicle granted under
any Receivable.
(l) No Default. No Receivable has a payment that is more than thirty
(30) days
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overdue and, except as permitted in this paragraph, no default, breach,
violation or event permitting acceleration under the terms of any Receivable
has occurred; and no continuing condition that with notice or the lapse of
time would constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable has arisen; and Premier or
Servicer has not waived and shall not waive any of the foregoing.
(m) Insurance. Premier or Servicer, in accordance with its customary
procedures, has determined that the Obligor has obtained physical damage
insurance covering the Financed Vehicle and under the terms of the Receivable
the Obligor is required to maintain such insurance.
(n) Title. No Receivable, or any interest therein, has been sold,
transferred, assigned or pledged by Premier to any Person other than the
Agent. Immediately prior to the sale and assignment herein contemplated,
Premier had good and marketable title to each Receivable free and clear of all
Adverse Claims and, immediately upon the sale thereof, the Agent shall have
good and marketable title to each Receivable, free and clear of all Adverse
Claims; and the sale has been perfected under the UCC.
(o) Lawful Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable is unlawful, void or voidable.
(p) All Filings Made. All filings (including UCC filings) necessary in
any jurisdiction to give the Agent a first priority perfected ownership
interest in the Receivables shall have been made.
(q) One Original. There is only one original executed copy of each
Receivable.
(r) Maturity of Receivables. Each Receivable has a final maturity date
not later than May 31, 2001.
(s) Scheduled Payments. Each Receivable has a first scheduled payment
due on or prior to the end of June, 1996.
(t) Location of Receivable Files. The Records for each Receivable are
kept at one or more of the locations listed in Exhibit A.
(u) Unpaid Principal Balance. Each Receivable (A) has an outstanding
gross balance of at least One Thousand Dollars ($1,000) and (B) is denominated
only in Dollars and payable only in the USA.
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(v) No Bankruptcies or First-Time Buyers. No Obligor on any Receivable
was, or is, noted in the related Records as having suffered a Bankruptcy
Event, and no Obligor financed a Financed Vehicle under CFC's "New Finance
Buyer Plan" program.
(w) No Repossessions. No Financed Vehicle securing any Receivable is
in repossession status.
(x) Chattel Paper. Each Receivable constitutes "chattel paper" as
defined in the UCC.
(y) 1933 and 1940 Acts. Each Receivable is an account receivable
representing all or part of the sales price of merchandise, insurance and
services within the meaning of Section 3(c)(5) of the Investment Company Act
of 1940. The purchase of each Receivable with the proceeds of notes would
constitute a "current transaction" within the meaning of Section 3(a)(3) of
the Securities Act of 1933.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1. Conditions to Closing. This Agreement shall become
effective on the date (the "Effective Date") on which the Agent shall have
received the following:
(a) Transaction Documents. An executed copy of each
Transaction Document (including any necessary or desirable financing
statements).
(b) Corporate Proceedings of the Affiliated Entity. A copy of
the resolutions, in form and substance satisfactory to the Agent, of
the Board of Directors or a committee thereof of each Affiliated
Entity authorizing the execution, delivery and performance of each
Transaction Document to which it is a party, certified by the
Secretary or an Assistant Secretary of such Affiliated Entity, which
certificate shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded.
(c) Corporate Documents. True and complete copies of each
Affiliated Entity's articles or certificate of incorporation,
certified by the Secretaries of State of the jurisdiction of its
incorporation, and by-laws, certified by its Secretary or Assistant
Secretary.
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(d) No Violation. A certificate of an appropriate officer of
each Affiliated Entity that the consummation of the transactions
contemplated hereby shall not contravene, violate or conflict with, as
to such Affiliated Entity, any law, rule, regulation or order or the
certificate or articles of incorporation, by-laws or other
organizational or governing documents of such Affiliated Entity.
(e) Consents, Licenses and Approvals. A certificate of an
appropriate officer of each Affiliated Entity (i) attaching copies of
all necessary consents, authorizations and filings, and (ii) stating
that such consents, licenses and filings are in full force and effect.
(f) Legal Opinions. The executed legal opinion of A.L.
Ronquillo, general counsel of the Affiliated Entities, substantially
in the form of Exhibit B.
(g) Good Standing. Good standing certificates for each of the
Affiliated Entities issued by the Secretaries of State of the
jurisdiction of its incorporation.
(h) Certificate. A certificate of the Secretary or any
Assistant Secretary of each of the Affiliated Entities certifying the
names and signatures of the officers authorized on its behalf to
execute each Transaction Document to which it is a party (on which
certificate the Agent may conclusively rely until such time as the
Agent shall receive from it a revised certificate meeting the
requirements of this Section 4.1(h)).
(i) Receipt. A receipt for payment of any fee payable on or
before the date hereof pursuant to the Fee Letter and the Pricing
Letter.
(j) Other. Such other approvals, opinions or documents as the
Agent may reasonably request.
Premier's acceptance of the Purchase Payment shall evidence Premier's
representation and warranty that all of this Section 4.1 has been satisfied.
ARTICLE V
COVENANTS
Section 5.1. Affirmative Covenants of Premier. Premier hereby
covenants, undertakes and agrees that, unless the Agent shall otherwise
consent in writing, Premier will perform the following covenants and
agreements:
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(a) Notices. Premier will notify the Agent in writing of any
of the following immediately upon learning of the occurrence thereof,
describing the same and, if applicable, the steps being taken by the
Person affected with respect thereto:
(i) Significant Events. The occurrence of any
Significant Event, and such notice shall include a statement
of a Designated Financial Officer of Premier, setting forth
the date of such occurrence and the nature thereof.
(ii) Representations and Warranties. The failure of
any representation or warranty to be true (when made or at any
time thereafter) in any material respect with respect to any
Receivable.
(b) Conduct of Business. Premier will, and will cause each
other Affiliated Entity to, do all things necessary for each to remain
duly incorporated, validly existing and in good standing as a domestic
corporation, in its jurisdiction of incorporation or organization and
maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
(c) Compliance with Laws. Premier will, and will cause each
other Affiliated Entity to, comply (in all material respects and in
all respects that could have an adverse effect on the enforceability
of any Transaction Document or the enforceability, collectibility or
quality of any Receivable) with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which such Person
or the Receivables or any other Asset may be subject.
(d) Furnishing of Information and Inspection of Records.
Premier will furnish to the Agent and the Servicer from time to time
such information with respect to the Receivables as the Agent or the
Servicer, as the case may be, shall reasonably request, including
listings identifying the Obligor and the unpaid principal balance for
each Receivable. Premier will, and will cause each other Affiliated
Entity to, permit, at any time during regular business hours upon one
(1) day prior notice, the Agent, or its agents or representatives, to:
(A) examine and make copies of and abstracts from all Records and (B)
visit the offices and properties of any Affiliated Entity for the
purpose of examining such Records. Premier shall cause all information
heretofore, and all such information hereafter, furnished by, or on
behalf of, any Affiliated Entity to the Agent or the Servicer
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for purposes of or in connection with this Agreement or any
transaction contemplated hereby to be materially true and accurate, in
each case on the date such information is stated or certified.
(e) Keeping of Records and Books. Premier will maintain and
implement administrative and operating procedures (including an
ability to recreate records evidencing Receivables in the event of the
destruction of the originals thereof), maintain adequate facilities,
personnel and equipment (including computer software and hardware),
and keep and maintain all Records, documents, books, records and other
information reasonably necessary or advisable for the collection of
all Receivables (including records adequate to permit the immediate
identification of all Collections of and adjustments to each
Receivable).
(f) Separate Corporate Existence. Premier will take all
actions necessary to maintain its identity as a separate legal entity
from each other Affiliated Entity.
(g) Performance and Compliance with Receivables and Contracts.
Premier will, and will cause each other Affiliated Entity and each
Dealer to, at its expense, fully perform in a timely fashion and
comply in all material respects with all provisions, covenants and
other promises required to be observed by it, or such Affiliated
Entity or such Dealer, under or in connection with each Asset and will
not do anything to impair the rights of the Agent in, or to, such
Assets.
(h) Perfection. Premier shall at all times maintain its chief
executive offices within a jurisdiction in the USA (other than in the
states of Florida, Maryland and Tennessee) in which Article 9 of the
UCC is in effect. Premier agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and
documents and take all action that the Agent may reasonably request in
order to perfect or protect the Agent's ownership interest in the
Assets or to enable the Agent to exercise or enforce any of its rights
hereunder. Without limiting the generality of the foregoing, Premier
will, on or prior to the Purchase Date (and promptly upon any changes
or additions hereafter), mark its master data processing records and
other books and records relating to the Assets with a legend
describing the Agent's interest therein. A copy of this Agreement or
any financing statement shall be sufficient as a financing statement.
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Section 5.2. Negative Covenants of Premier. Premier hereby covenants,
undertakes and agrees that, unless the Agent shall otherwise consent in
writing, Premier will perform the following covenants and agreements:
(a) Sales and Liens Relating to Receivables. Except as
otherwise provided herein, Premier will not pledge, grant, transfer,
convey, sell, assign (by operation of law or otherwise) or otherwise
transfer or dispose of, or create or suffer to exist any Adverse Claim
upon (including the filing of any financing statement or similar
document) or with respect to any Asset or assign any right to receive
the proceeds or income in respect of any of the foregoing.
(b) Extension or Amendment of Receivables. Except as otherwise
permitted in the Servicing Agreement, Premier will not, and will not
permit any other Affiliated Entity or any Dealer to, extend, amend or
otherwise modify the terms of any Receivable, or amend, modify or
waive any term or condition of any Contract related thereto.
(c) Change in Business or Collection Policies. Premier will
not, and will not permit any other Affiliated Entity or any Dealer to,
make any change in the character of its business or in Premier's or
the Servicer's collection policies, which change would, in either
case, materially impair the enforceability, collectibility or quality
of any Receivable.
(d) Accounting of Sales. Premier will not, and will not permit
any other Affiliated Entity or any Dealer to, voluntarily prepare any
financial statements which shall account for, or in any other respect
(including for accounting and tax purposes) account for or treat, the
transactions contemplated hereby in any manner other than as a sale of
Receivables or in any manner inconsistent with the Agent's ownership
interest in the Assets.
(e) Contingent Liabilities. Premier will not guarantee,
endorse or otherwise be or become contingently liable (including by
agreement to maintain balance sheet tests but excluding customary
indemnifications provided in the ordinary course of business) in
connection with the obligations of any other Person, except
endorsements of negotiable instruments for collection in the ordinary
course of business and reimbursement or indemnification obligations in
favor of the Agent or the Purchasers as provided for under this
Agreement.
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Section 5.3. Covenants of Premier and CFC. Premier and CFC hereby
jointly and severally covenant, undertake, and agree that, unless the Agent
shall otherwise consent in writing, Premier and CFC will perform the following
covenants and agreements:
(a) Merger, Transfer of Assets by Premier, etc. Neither
Premier nor CFC will merge or consolidate with or into any other
Person, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution) except that:
(i) Premier may merge or consolidate with or into CFC,
provided that immediately after such merger or consolidation,
the representations and warranties set forth in Section 3.1,
with respect to CFC, shall be true and correct as of such
time;
(ii) Premier may merge or consolidate with or into any
other Person, provided that any Person (A) into which Premier
may be merged or consolidated, (B) which may result from any
merger or consolidation to which Premier shall be a party, or
(C) which may succeed to the properties and assets of Premier
substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every
obligation of Premier under the Transaction Documents, shall
be the successor to Premier thereunder without the execution
or filing of any document or any further act by any of the
parties to the Transaction Documents; provided, however, that
(I) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 3.1 shall
have been breached and no Servicer Termination Event or
Significant Event and no event that, after notice or lapse of
time, or both, would become a Servicer Termination Event or
Significant Event shall have occurred and be continuing, (II)
Premier shall have delivered to the Agent an officers'
certificate and an opinion of counsel each stating that such
consolidation, merger or succession and such agreement of
assumption comply with this Section 5.3(a)(ii) and that all
conditions precedent, if any, provided for in any of the
Transaction Documents relating to such transaction have been
complied with, (III) any rating agency condition with respect
to the Transaction Documents shall have been satisfied with
respect to such transaction and (IV) Premier shall have
delivered to the Agent an opinion of
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counsel either (x) stating that, in the opinion of such
counsel, all financing statements and continuation statements
and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the
Agent in the Assets and reciting the details of such filings
or (y) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such
interests. Notwithstanding anything therein to the contrary,
the execution of the foregoing agreement of the assumption and
compliance with clauses (I), (II), (III) and (IV) above shall
be conditions to the consummation of the transactions referred
to in clauses (A), (B) or (C) above;
(iii) CFC may merge or consolidate with or into any
other Person, provided that (A) CFC shall be the continuing or
surviving corporation, and (B) immediately after such merger
or consolidation, the representations and warranties set forth
in Section 3.1, with respect to CFC, shall be true and correct
as of such time; and
ARTICLE VI
INDEMNIFICATION
Section 6.1. Indemnities. Without limiting any other rights that the
Agent or any Purchaser may have hereunder or under applicable law, Premier
hereby agrees to indemnify, defend, protect, save and hold harmless the Agent
and each Purchaser and its respective officers, directors, agents and
employees (each an "Indemnified Party") from and against any and all damages,
losses, claims, liabilities, obligations, penalties, actions, judgments,
suits, costs and expenses, including reasonable attorneys' fees (which
attorneys may include employees of the Agent, any Purchaser, or any assignee,
if any), court costs, settlements and disbursements (all of the foregoing
being collectively referred to as "Indemnified Losses") which may at any time
be imposed on, asserted or awarded against or incurred or suffered by any of
them arising out of or as a result of any Transaction Document or the
transactions contemplated thereby or the acquisition, either directly or
indirectly, by the Agent of the Assets or any action taken or omitted by any
of the Indemnified Parties, excluding, however, (i) Indemnified Losses to the
extent a final judgment of a court of competent jurisdiction holds such
Indemnified Losses resulted solely from gross negligence or willful misconduct
on the part of the Indemnified Party seeking
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indemnification or (ii) Indemnified Losses to the extent the same include
losses in respect of uncollectible Receivables solely due to the credit risk
of the Obligor and reimbursement therefor would constitute recourse to Premier
for the amount of uncollectible Receivables; provided, however, that nothing
contained in this sentence shall limit the liability of Premier, CFC or the
Servicer or limit the recourse of the Agent and each Purchaser to Premier, CFC
or the Servicer, respectively, for any amounts otherwise specifically provided
to be paid by Premier, CFC or the Servicer under the terms of this Agreement,
including the terms of the next succeeding sentence. Without limiting the
generality of the foregoing indemnification, Premier agrees to indemnify the
Agent and each Purchaser for Indemnified Losses (including losses in respect
of uncollectible Receivables, regardless of whether reimbursement therefor
would constitute recourse to Premier) relating to or resulting from:
(a) the inclusion in the Net Receivables Balance of any
Receivable other than a Receivable with respect to which all of the
representations and warranties set forth in Section 3.2 are true and
correct in all material respects on the Purchase Date;
(b) any representation or warranty made by any Affiliated
Entity, the Servicer or any officers of either thereof under or in
connection with any of the Transaction Documents, including any
Monthly Report or any other information or report delivered by any
Affiliated Entity or the Servicer or any officers of any thereof,
pursuant hereto or thereto, that shall have been false, misleading or
incorrect in any material respect, or omitted to state a material
fact, when made or deemed made;
(c) any alleged failure by Premier, the Servicer, or any other
Person (acting for, on behalf of, or together with Premier or the
Servicer) to comply with any applicable law, rule or regulation with
respect to any Receivable, or the collectability thereof, or any
Contract related thereto, imposed by any governmental or regulatory
body, including any requirements of licensing, registration,
authorizations, consents and approvals necessary or desirable for the
entering into of any Contract, for the creation of any Receivable or
for the sale of any interest in any Receivable to the Agent hereunder
and including laws, rules and regulations relating to usury,
disclosures, truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices,
trade practices, consumer protection and privacy, or any of the
foregoing which may affect the
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enforceability of any Receivable, or the nonconformity of any
Receivable or Contract included therein or sale of the Assets to the
Agent hereunder with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Agent a
perfected ownership interest in the Assets free and clear of any
Adverse Claim;
(e) the failure to vest and maintain vested in the Agent a
perfected security interest in the Assets free and clear of any
Adverse Claim;
(f) the failure by Premier, the Servicer, or any other Person
(acting for, on behalf of, or together with Premier or the Servicer)
to file, or any delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable jurisdiction
or other applicable laws with respect to any Assets;
(g) any commingling of Collections or other funds to which the
Agent or any Purchaser is entitled hereunder with any other funds;
(h) any dispute, claim, counterclaim, offset or defense (other
than discharge in bankruptcy of the Obligor) of the Obligor to the
payment of any Receivable included in the Assets (including a defense
based on such Receivable or the Contract relating to such Receivable
not being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms);
(i) any failure of any Affiliated Entity or the Servicer to
perform its duties or obligations in accordance with the provisions of
each of the Transaction Documents to which such Affiliated Entity or
the Servicer is a party; or
(j) any action taken by the Agent under the Servicing
Agreement.
Section 6.2. Tax Indemnification and Characterization. (a) Premier
agrees to pay, and to indemnify, defend, protect, save and hold harmless, on
an after-Tax basis, the Agent and each Purchaser from and against, all (i)
Taxes that may at any time be imposed in connection with the Receivables, any
of the Transaction Documents or the receipt of payment under this Section 6.2,
whether imposed upon the Agent, any Purchaser, any Affiliated Entity, any
other Person, the Assets or otherwise and (ii) damages, losses, claims,
liabilities and related costs and expenses and reasonable counsel fees of the
Agent and each Purchaser in connection with the
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imposition or assertion of any Tax described in clause (i) above or defending
against the same, and in all cases, whether arising by reason of the acts to
be performed by any Affiliated Entity under any Transaction Document or
otherwise or imposed upon or against any Purchaser, the Agent, any Affiliated
Entity or any other Person or the property involved or otherwise; provided,
however, that this Section 6.2(a) shall not apply with respect to Taxes on or
measured by the overall net income of the Agent or any Purchaser ("Income
Taxes") to the extent that the computation of such Income Taxes is consistent
with the Intended Tax Characterization (defined below).
(b) It is the intention of the parties hereto that, for the purposes
of all Taxes, the transactions contemplated hereby shall be treated as a sale
by Premier to the Agent which is acting as agent for the Purchasers and such
Purchasers will be treated as the owners for tax purposes (the "Intended Tax
Characterization"). The parties hereto agree to report such transactions for
the purposes of all Taxes, and otherwise to act for the purposes of all Taxes,
in a manner consistent with the Intended Tax Characterization.
(c) All payments due pursuant to this Section 6.2 shall be paid no
later than ten (10) Business Days after demand for such payment has been made
by the Agent. Without in any way limiting the Agent's and any Purchaser's
remedies, any such amount not paid when due shall bear interest at a rate
equal to the Prime Rate plus two percent (2%) per annum. Any claim that the
Agent or any Purchaser makes for payment pursuant to this Section 6.2 shall be
accompanied by a statement of the Agent's or such Purchaser's accountants
which attests that the claim has been computed in conformity with the
requirements of this Section 6.2.
Section 6.3. Increased Cost and Reduced Return. (a) If the adoption of
any applicable law, rule or regulation, or any change therein, or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Windmill Funding Source, the
Agent or Windmill (collectively, the "Funding Parties") with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency (a "Regulatory Change"): (i)
shall subject any of the Funding Parties to any charge or withholding on or
with respect to the applicable Funding Agreement or the Assets or other
property conveyed hereunder or funds advanced in connection therewith, or such
Funding
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Party's obligations under any of the Funding Agreements, (ii) shall impose,
modify or deem applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits with or for the
account of, or any credit extended by, any of the Funding Parties or (iii)
shall impose any other condition, and the result of any of the foregoing is to
impose a cost on or increase the cost to any of the Funding Parties (A) of its
commitment under any of the Funding Agreements, or (B) of its purchasing,
maintaining or funding of any of its property interests under any of the
Funding Agreements, or (C) of the Assets or its interest therein, as the case
may be, or to reduce the amount of any sum received or receivable by any of
the Funding Parties under any of the Funding Agreements or to require any
payment calculated by reference to the amount of interests or loans held or
interest or other amounts received by it, then, upon demand by the Agent,
Premier shall pay to the Agent or such Funding Party such additional amounts
as will compensate such Funding Party for such increased cost or reduction.
(b) If any of the Funding Parties shall have determined that any
Regulatory Change (including any such Regulatory Change that results in or
results from or otherwise relates to any transaction in connection with any of
the Funding Agreements or any commitment thereunder or hereunder being
classified as a highly leveraged transaction for regulatory or other purposes)
has or would have the effect of reducing the rate of return on such Funding
Party's capital as a consequence of such Funding Party's obligations or
commitment under any of the Funding Agreements to a level below that which
such Funding Party could have achieved but for such adoption, change or
compliance (taking into consideration such Funding Party's policies with
respect to capital adequacy), then, from time to time upon demand by the
Agent, Premier shall pay to the Agent or such Funding Party such additional
amounts as will compensate such Funding Party for such reduction.
(c) If any Person shall become entitled to claim any additional
amounts pursuant to Section 6.3(a) or 6.3(b), such Person (i) shall promptly
notify Premier, through the Agent, of the event or circumstance by reason of
which it has become so entitled, and (ii) shall deliver to Premier and the
Agent one or more certificates setting forth the amounts due to such Person
under Section 6.3(a) or 6.3(b), a description of such event or circumstance by
reason of which it has become entitled to such amount and the manner of
computation and calculation of such amount; provided, however, it is agreed by
way of clarification that claims for any additional amounts
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pursuant to Section 6.3(a) or 6.3(b) must be reasonably attributable
to the transactions which are the subject of the Transaction Documents and
such certificate shall also reasonably demonstrate the connection with, and
method of attribution to, such transactions; provided further, however, claims
for increased cost or reduced returns pursuant to Section 6.3(a) or 6.3(b)
shall only be payable if the Regulatory Changes are generally applicable to
the banking or other applicable industry in the country of origin of the
applicable Funding Party or in the country in which the applicable Funding
Party operates. Each such certificate shall be conclusive absent manifest
error. Premier shall pay to the Agent, for the account of such Person, the
amount shown as due on any such certificate within ten (10) Business Days
after receipt of the same. No failure on the part of any Person to demand
compensation under this Section 6.3 on any occasion shall constitute a waiver
of its right to demand such compensation on any other occasion. The protection
of this Section 6.3 shall be available to each Person regardless of any
possible contention of the invalidity or inapplicability of any law,
regulation or other conditions which shall give rise to any demand by such
Person for compensation hereunder.
(d) If any liquidity provider of Windmill shall become affected by any
of the changes or events described in Section 6.3(a) or 6.3(b) and the Agent,
on behalf of such liquidity provider, shall petition Premier for any increased
cost or amounts thereunder, then in such case, Premier or the Agent may, upon
at least ten (10) Business Days prior notice to the Agent (with respect to
Premier) and such liquidity provider, designate a replacement liquidity
provider acceptable to the Agent and the Purchasers in accordance with the
terms of the Transaction Documents.
Section 6.4. Other Costs and Expenses. Premier shall pay to the Agent
and the Purchasers on demand all costs and expenses in connection with (a) the
preparation, execution, delivery and administration (including amendments,
supplements, waivers and any other modification of any provision) of the
Transaction Documents, (b) the sale of the Assets to the Agent hereunder, (c)
the perfection as against all third parties whatsoever of the Agent's right,
title and interest in the Assets and (d) the enforcement by the Agent or the
Purchasers of the indebtedness, obligations and liabilities of Premier, CFC
and the Servicer under the Transaction Documents, or any related document or
of any Obligor under any Receivable or other Asset, including costs and
expenses with respect to advising any Funding Party as to its rights and
remedies under any Transaction Document or any related Funding Agreement and
all costs and
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expenses, if any, including counsel fees and expenses of any Funding Party in
connection with the enforcement of the Transaction Documents and any such
Funding Agreement and in connection with any restructuring or workout of such
Transaction Documents or the administration of the Transaction Documents
following a Significant Event or enforcement of the indebtedness, obligations
and liabilities of any Obligor under any Receivable or other Asset. Premier
shall reimburse the Agent for the cost of the Agent's auditors (which such
auditors may be employees of the Agent) auditing the books, records and
procedures of Premier. Premier shall reimburse Windmill for any amounts
Windmill must pay to any Windmill Funding Source pursuant to any Funding
Agreement on account of any Tax described in, and made payable by application
of, Section 6.2 and applicable to such Windmill Funding Source. Premier shall
reimburse the Agent and the Purchasers on demand for any and all amounts
specified in the Fee Letter and the Pricing Letter.
Section 6.5. Withholding Taxes. All payments made by Premier or the
Servicer under the Transaction Documents shall be made free and clear of, and
without reduction or withholding for or on account of, any present or future
Taxes, now or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority or other taxing authority excluding, in the case of
the Agent and each Purchaser, any net income taxes imposed on the Agent or
such Purchaser (such non-excluded Taxes being hereinafter called "Non-Excluded
Taxes"). If any Non-Excluded Taxes are required to be withheld from any
amounts payable to the Agent or any Purchaser, the amounts so payable to the
Agent or such Purchaser shall be increased to the extent necessary to yield to
the Agent or such Purchaser (after payment of all Taxes) all such amounts
payable hereunder at the rates or in the amounts specified in this Agreement.
Whenever any Non-Excluded Taxes are payable by Premier or the Servicer, as
promptly as possible thereafter, Premier or the Servicer shall send to the
Agent for its own account or for the account of such Purchaser, as the case
may be, a certified copy of an original official receipt received by Premier
or the Servicer showing payment thereof. If Premier or the Servicer fails to
pay any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Agent the required documentary evidence, Premier or the
Servicer shall indemnify the Agent and the Purchasers for such Non-Excluded
Taxes and any incremental Taxes that may become payable by the Agent or any
Purchaser as a result of any such failure.
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Section 6.6. Allocations. All allocations to be made pursuant to the
foregoing provisions of this Article VI shall be made by the Agent in its
reasonable discretion and shall be binding on Premier. Should the Agent invoke
the indemnity provisions of this Article VI, then the Agent shall provide
Premier with one or more certificates setting forth amounts due, a description
of such event or circumstance by reason of which it has become entitled to
invoke this Article VI, and the basis of any calculations made which, in the
absence of material error, shall be conclusive and binding for all purposes.
Premier shall pay to the Agent the amount shown as due on any such certificate
within ten (10) Business Days after receipt of same. For all purposes of
determining materiality under this Article VI, no Person shall have the right
to receive any information other than its right to receive from the Agent (or
the applicable Funding Party) one or more certificates setting forth amounts
due, a description of such event or circumstance by reason of which it has
become entitled to invoke this Article VI, and the basis of any calculations
made.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Term of Agreement. This Agreement shall terminate when
all the Aggregate Unpaids have been paid in full. Notwithstanding the
foregoing, (i) the rights and remedies of the Agent and each Purchaser with
respect to any representation and warranty made, or deemed to be made, by
Premier, CFC or the Servicer, (ii) the indemnification and payment provisions
hereof (including Sections 6.1, 6.2, 6.3, 6.4 and 6.5), and (iii) any other
provision which by its own terms survives the termination of this Agreement,
shall be continuing and shall survive any termination of this Agreement.
Section 7.2. Waivers; Amendments. No failure or delay on the part of
the Agent or any Purchaser in exercising any power, right, privilege or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right, privilege or remedy preclude any
other or further exercise thereof or the exercise of any other power, right,
privilege or remedy. The rights, powers, privileges and remedies herein
provided shall be cumulative and not exclusive of any rights, powers,
privileges or remedies provided by law. Any waiver of this Agreement shall be
effective only in the specific instance and for the specific purpose for which
given. No waiver, amendment, supplement or other modification to
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this Agreement shall be effective unless in writing and signed by each of the
parties hereto.
Section 7.3. Notices. Except as provided below, all communications,
demands and notices provided for hereunder shall be in writing (including bank
wire, telecopy or electronic facsimile transmission or similar writing) and
shall be given to each other party at its address or telecopy number set forth
on its signature page of the Purchase Agreement or at such other address or
telecopy number as such party may hereafter specify for the purposes of notice
to such party. Each such notice or other communication shall be effective (i)
if given by telecopy, upon the receipt thereof, (ii) if given by mail, three
(3) Business Days after the time such communication is deposited in the mails
with first-class postage prepaid or (iii) if given by any other means, when
received at the address specified in this Section 7.3; provided, however,
that, in the case of any notice to be given under Article II, such notice
shall not be effective until receipt thereof by the Person to whom such notice
is to be given. Notwithstanding the foregoing, if Premier makes Tranche Period
or Tranche Rate selections, it hereby authorizes the Agent to make such
selections based on telephonic notices made by any Person which the Agent in
good faith believes to be acting on behalf of Premier. Premier agrees to
deliver promptly to the Agent a written confirmation of each telephonic notice
signed by an authorized officer of Premier. Each Affiliated Entity, and the
Servicer, hereby authorizes the Agent, at the Agent's option, to tape record
all or any part of telephonic notices and any other related conversations. The
Agent's records as to all such matters shall be deemed correct. The absence of
any written confirmation shall not affect the validity of the notice. If the
written confirmation differs in any material respect from the action taken by
the Agent, the records of the Agent shall govern absent manifest error.
Section 7.4. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND
NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK. Each Affiliated Entity,
and the Servicer, hereby submits to the nonexclusive jurisdiction of any
United States District Court for New York and of any New York state court
sitting in New York, New York for purposes of all legal proceedings arising
out of or relating to this Agreement or the transactions contemplated hereby.
Each Affiliated Entity, and the Servicer, hereby irrevocably waives, to the
fullest extent it may effectively do so, any objection which it may now or
hereafter have to the laying of the venue of
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any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Nothing in this Section 7.4 shall affect the right of the Agent or any
Purchaser to bring any action or proceeding against any Affiliated Entity, or
the Servicer, or its property in the courts of other jurisdictions.
Section 7.5. Further Assurances. Each Affiliated Entity, and the
Servicer, agrees, from time to time, to do and perform any and all acts and to
execute any and all further instruments required or reasonably requested by
the Agent to more fully effect the purposes of the Transaction Documents,
including the execution of any financing statements or continuation statements
relating to the Assets for filing under the provisions of the UCC of any
applicable jurisdiction.
Section 7.6. Waiver of Confidentiality. Anything herein to the
contrary notwithstanding, each Affiliated Entity, and the Servicer, hereby
consents to the disclosure of any nonpublic information with respect to it (i)
to the Funding Parties by other Funding Parties, and (ii) by the Funding
Parties to any prospective or actual assignee or participant of any of them
(only if such nonpublic information is accompanied by a statement that such
prospective or actual assignee or participant agrees, by receipt of such
information, to maintain the confidentiality of such information) or any
rating agency or provider of a surety, guaranty or credit or liquidity
enhancement to any of them or any entity organized for the purpose of
purchasing, or making loans secured by, financial assets for which ABN AMRO
provides managerial services or acts as the administrative agent, or the
administrator, the management company, any referral agent, any depositary or
issuing agent, any commercial paper dealer or placement agent of Windmill, or
any officers, directors, employees, outside accountants, auditors,
Governmental Authorities having jurisdiction over them or lawyers of any of
the foregoing. In addition, the Funding Parties may disclose any such
nonpublic information pursuant to any law, rule, regulation, direction,
request or order of any judicial, administrative or regulatory authority or
proceedings (whether or not having the force and effect of law).
Section 7.7. Confidentiality of Agreement. Unless otherwise agreed to
in writing by the Agent, each Affiliated Entity, and the Servicer, hereby
agrees that it will not disclose the contents of the Transaction Documents, or
any other confidential or proprietary information furnished by any Funding
Party, to any other Person except (i) its auditors and attorneys or (ii) as
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otherwise required by applicable law or order of a court of competent
jurisdiction.
Section 7.8. Limitation of Liability. No claim may be made by Premier,
CFC, the Servicer or any other Person against any Funding Party or their
respective Affiliates, directors, officers, employees, attorneys or agents for
any special, indirect, consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of
or related to the transactions contemplated by the Transaction Documents, or
any act, omission or event occurring in connection therewith; and Premier, the
Servicer and CFC for themselves, and all other Persons claiming by or through
them, hereby waive, release and agree not to sue upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
Section 7.9. Limitations Regarding Premier. (a) Agreement Not to
Petition. Each of the parties hereto and each Purchaser hereby covenants and
agrees that such Person shall not at any time institute against Premier any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any Federal or state bankruptcy or
similar law.
(b) Limited Recourse. Notwithstanding any other provision of this
Agreement, all obligations and liabilities of Premier hereunder and under the
other Transaction Documents shall constitute Aggregate Unpaids and shall be
limited recourse to Premier, with such recourse being limited to the Assets.
(c) No Affect. Notwithstanding any of the limitations set forth in
this Section 7.9 with respect to Premier, none of the liabilities,
indemnifications, payments or other obligations or duties of the CFC or the
Servicer shall in any way be limited, deferred or otherwise affected by this
Section 7.9 nor shall the application of this Section 7.9 be interpreted in
any manner which is inconsistent with the Agent's ownership of the Assets or
which limits, defers or otherwise affects the ability of any Person to recover
the Aggregate Unpaids from the Assets.
(d) Administration. Each of the parties to this Agreement hereby
acknowledges and agrees that each and every responsibility, function, duty and
agreement of Premier set forth herein will be performed by CFC for, in the
name of and on behalf of Premier, as Premier's administrative agent.
Section 7.10. Enforceability of Receivables. The obligations of each
Affiliated Entity,
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and the Servicer, under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable or the sale of the
Assets to the Agent hereunder.
Section 7.11. Third-Party Beneficiaries. The Purchasers are intended
to be third-party beneficiaries of this Agreement.
Section 7.12. Agreement to Generic Provisions and Standard Provisions.
Each of the parties hereto hereby agrees to be bound by, and comply with, all
of the terms, provisions and agreements set forth in Schedules I and II. All
defined terms used therein, and not otherwise defined herein, shall have the
meanings ascribed to such terms in the other Transaction Documents; provided,
however, that the term "this Agreement" as used therein shall refer to this
Agreement. The provisions of Sections SP.2, SP.3, SP.5 and SP.6 shall survive
the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
hereof.
PREMIER AUTO RECEIVABLES COMPANY, CHRYSLER FINANCIAL CORPORATION,
as Premier individually and as the Servicer
By: /s/ D. H. Olsen By: /s/ D. H. Olsen
----------------- -----------------
Name: D. H. Olsen Name: D. H. Olsen
Title: Assistant Treasurer Title: Assistant Treasurer
Address: 27777 Franklin Road Address: 27777 Franklin Road
Southfield, MI 48034-8286 Southfield, MI 48034-8286
Attention: _______________________ Attention:
Secretary
Telecopy: (810) 948-3148 Telecopy: (810) 948-3148
Telephone: (810) 948-3060 Telephone: (810) 948-3060
ABN AMRO BANK N.V., as the Agent
By: /s/ Robert C. Smolka
----------------------
Name: Robert C. Smolka
Title: Group Vice President
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<PAGE>
By: /s/ Mary C. Casey
-------------------
Name: Mary C. Casey
Title: Vice President
Address: Structured Finance, Asset
Securitization
135 South LaSalle Street
Chicago, IL 60674-9135
Attention: Purchaser Agent - Windmill
Telecopy: (312) 904-2737
Telephone: (312) 904-6376
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EXHIBIT 10-TTTT
CONFORMED COPY
RECEIVABLES SALE AGREEMENT
among
PREMIER RECEIVABLES L.L.C.
as Seller,
CHRYSLER FINANCIAL CORPORATION
as Servicer,
ASSET SECURITIZATION COOPERATIVE CORPORATION
as Purchaser
and
CANADIAN IMPERIAL BANK OF COMMERCE
as Administrative Agent
Dated as of June 27, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I: DEFINITIONS.....................................................1
ARTICLE II: THE FACILITY...................................................12
ARTICLE III: FEES AND EXPENSES..............................................14
ARTICLE IV: CONDITIONS PRECEDENT...........................................16
ARTICLE V: SETTLEMENT PROCEDURES..........................................18
ARTICLE VI: THE SERVICING OF RECEIVABLES...................................19
ARTICLE VII: REPRESENTATIONS AND WARRANTIES.................................24
ARTICLE VIII: COVENANTS......................................................27
ARTICLE IX: INDEMNIFICATIONS; INCREASED COSTS..............................31
ARTICLE X: ADMINISTRATIVE AGENT...........................................35
ARTICLE XI: MISCELLANEOUS..................................................35
EXHIBITS
--------
EXHIBIT A -- Form of Servicer Report
EXHIBIT B -- Form of Membership Agreement
EXHIBIT C -- Form of Opinion of Counsel
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RECEIVABLES SALE AGREEMENT dated as of June 27, 1996 among
PREMIER RECEIVABLES L.L.C., a Michigan limited liability company, as the
"Seller", CHRYSLER FINANCIAL CORPORATION, a Michigan corporation, as the
initial "Servicer", ASSET SECURITIZATION COOPERATIVE CORPORATION, as the
"Purchaser" and CANADIAN IMPERIAL BANK OF COMMERCE, as the "Administrative
Agent" for the Purchaser.
ARTICLE I: DEFINITIONS
"Administrative Agent" means Canadian Imperial Bank of Commerce
and any replacement thereof under Section 10.1.1.
"Adverse Claim" means any mortgage, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (consensual,
statutory or other), charge, security arrangement, negative pledge or any
other encumbrance or other right or claim in, of or on any Person's assets or
properties in favor of any other Person, of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic
effect as any of the foregoing).
"Affiliate" means any Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with,
another Person or a subsidiary of such other Person. A Person shall be deemed
to control another Person if the controlling Person owns five percent (5%) or
more of any class of voting securities (or, if such controlled Person is not a
corporation, five percent (5%) or more of any equity interest) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock or other equity interest, by contract or
otherwise. Neither CIBC nor ASCC shall constitute an "Affiliate" of the
Seller.
"Agreement" means this Receivables Sale Agreement, as it may be
amended from time to time.
"Aggregate Principal Balance" means, at any time, the aggregate
Principal Balance of all Purchased Receivables at such time.
"Bankruptcy Code" means the Bankruptcy Reform Act of
1978 (11 U.S.C. sections 101 et seq.), as amended.
"Balloon Payment" means, for any Receivable, the principal
component of any payment (including any balloon payments under the "Gold Key
Plus Program") which is not a level
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monthly payment (other than the first or last payment made on the Receivable
which is minimally different from the other level payments).
"Business Day" means any day on which banks are not authorized
or required to close in New York City.
"Carrying Costs" means, for each Settlement Period, an
amount equal to the sum of:
(i) (PD + PP + OEF) x DSP x AI
---
360
plus
----
(ii) SF x DSP x APB
---
360
where PD = Purchase Discount
PP = Purchase Premium
OEF = Operating Expense Fee
SF = Servicer Fee
DSP = the number of days in such
Settlement Period
AI = the average daily Purchaser's
Investment for such Settlement
Period
APB = the Aggregate Principal Balance as of
the first day of such Settlement Period.
"Carrying Costs True-up Amount" has the meaning assigned to
such term in Section 3.1.1(b).
"Certificate of Title" means any certificate, instrument or
other document issued by a state or other governmental authority in respect of
any truck, tractor, trailer, automobile or other motor vehicle for the purpose
of evidencing the ownership of, or any Adverse Claim in or against, such motor
vehicle.
"CFC" means, Chrysler Financial Corporation, a Michigan
corporation.
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"Code" means the Internal Revenue Code of 1986, as
amended.
"Collection" means any amount paid by an Obligor or any other
party with respect to a Purchased Receivable, including Liquidation Proceeds
and Recoveries.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices, or other writings pursuant to which such
Receivable arises or which evidence such Receivable.
"Credit and Collection Policy" means the credit and collection
policies and practices of the Servicer relating to Receivables and Contracts.
"Credit Facilities" means each of the committed loan
facilities, lines of credit, letters of credit and other forms of credit
enhancement available to the Purchaser which are not Liquidity Facilities.
"Cut-Off Date" means June 24, 1996.
"Dealer" means an automobile or light-duty truck dealership
located within the United States at or through which a Financed Vehicle shall
have been purchased or is proposed to be purchased.
"Delinquency Ratio" means, as of the last calendar day of any
month, a fraction, expressed as a percentage, the numerator of which is the
sum of the Principal Balances of all Receivables which were Delinquent
Receivables as of the last calendar day of such month and the last calendar
day of each of the two immediately preceding months, and the denominator of
which is the sum of the Aggregate Principal Balance on such last calendar day
of such month and on the last calendar day of each of the two immediately
preceding months, provided, that, for purposes of determining the Delinquency
Ratio for (a) the month of July 1996, the foregoing calculation shall be made
using only data for the month of July 1996 and (b) the month of August 1996,
the foregoing calculation shall be made using only data for the months of July
and August 1996.
"Delinquent Receivable" means any Receivable which has 10% or
more of a scheduled payment past due for more than 60 days.
"Eligible Receivable" means, as of the Cut-Off Date,
any Receivable:
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(i) the Obligor of which (a) is a resident of the
United States and (b) is not an Affiliate of the originating
Dealer or any of the parties hereto,
(ii) the Obligor of which (a) is not the Obligor of any
Receivable which has 10% or more of a scheduled payment past due for
more than 30 days and (b) is not the subject of any bankruptcy,
insolvency or reorganization proceeding or any other proceeding
seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or any substantial
part of its property,
(iii) which is an account receivable representing all or part
of the sales price of merchandise, insurance or services within the
meaning of Section 3(c)(5) of the Investment Company Act of 1940, as
amended,
(iv) a purchase of which with the proceeds of notes would
constitute a "current transaction" within the meaning of Section
3(a)(3) of the Securities Act of 1933, as amended,
(v) which is "chattel paper" within the meaning of
Section 9-105 of the UCC of all applicable jurisdictions,
(vi) which is denominated and payable only in United
States dollars in the United States,
(vii) which (a) has been originated in the United States by a
Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer's business and (b) satisfies all applicable
requirements of the Credit and Collection Policy,
(viii) which arises under a Contract which, together with such
Receivable, is (1) in full force and effect and constitutes the legal,
valid and binding obligation of the related Obligor, enforceable
against such Obligor in accordance with its terms, and (2) subject to
no dispute, offset, counterclaim or other defense, and (c) with
respect to which (1) no default, breach, violation, or event
permitting acceleration under the terms thereof has occurred and (2)
there has not arisen any condition that, with notice or lapse of time
or both, would constitute a default, breach, violation or event
permitting acceleration under the terms thereof,
(ix) which, together with the related Contract, (a) is
secured by a perfected, valid, subsisting and enforceable
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first priority security interest in favor of the Servicer in the
related Financed Vehicle, (b) contains customary and enforceable
provisions such that the rights and remedies of the holder of such
security interest are adequate for realization against the collateral
of the benefits of the security, and (c) was originated and
transferred to the Seller without any conduct constituting fraud or
misrepresentation on the part of the applicable Dealer, CFC or the
Seller,
(x) which, together with the related Contract, immediately
following the execution of such Contract, was purchased by (and the
originating Dealer has validly assigned all of its right, title and
interest therein to) CFC, which, in turn, has sold such Receivable to
the Seller, and such purchase and assignment of such Receivable, such
Contract and the Related Security to CFC is expressly contemplated in
such Contract,
(xi) which arises under a Contract which (a) does not require
the Obligor under such Contract to consent to or receive notice of the
transfer, sale or assignment of the Receivable, such Contract or the
Related Security and (b) does not contain a confidentiality provision
that purports to restrict the ability of the Administrative Agent or
the Purchaser to exercise its rights under this Agreement, including,
without limitation, its right to review the Contract,
(xii) which, together with the Contract related thereto, does
not contravene any laws, rules or regulations applicable thereto
(including, without limitation, laws, rules and regulations relating
to usury, truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices
and privacy) and with respect to which no part of the Contract related
thereto is in violation of any such law, rule or regulation,
(xiii) the Financed Vehicle securing which (a) is free and
clear of any Adverse Claim other than the security interest therein
then being assigned by the Seller to the Administrative Agent for the
benefit of the Purchaser, and no enforcement action, whether by
repossession or otherwise, has been taken with respect to such
Financed Vehicle or any other Financed Vehicle at any time owned by
such Obligor, and (b) is covered by the Required Insurance in respect
of such Financed Vehicle, and such Required Insurance is in full force
and effect, has been assigned to the Seller and is fully assignable to
the Administrative Agent, for the benefit of the Purchaser,
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(xiv) as to which the Administrative Agent has not notified the
Seller that such Receivable or class of Receivables is not acceptable
as an Eligible Receivable, including, without limitation, because such
Receivable arises under a Contract that is not acceptable,
(xv) with respect to which the Seller has good and marketable
title, free and clear of any Adverse Claim, and in which, following
the purchase of an ownership interest therein hereunder, the Purchaser
shall have an undivided first priority ownership interest therein,
free and clear of any Adverse Claim,
(xvi) with respect to the Outstanding Balance thereof, (a) the
related Contract requires that payment in full of such Outstanding
Balance is scheduled to be made (1) not earlier than 5 months after,
and not later than 72 months after, the date such Receivable was
originated, and (2) not later than 60 months after the date any
interest therein is purportedly transferred to the Purchaser hereunder
and (b) such Outstanding Balance is scheduled to be paid in equal
consecutive monthly installments, unless such Receivable arises under
the Gold Key Plus Program,
(xvii) which Receivable bears interest at the per annum rate
stated on the face of the related Contract, which per annum rate
remains fixed during the term of such Receivable and accrued interest
on such Receivable is payable monthly, in arrears,
(xviii) other than in accordance with the Credit and Collection
Policy, the Contract with respect to such Receivable has not been
amended, waived, altered or modified in any respect since the date of
the sale of the applicable Financed Vehicle,
(xix) each of CFC, the Seller and the applicable Dealer with
respect to such Receivable have duly fulfilled all obligations on its
part to be fulfilled under, or in connection with, the related
Contract and such Person has done nothing to impair the rights of the
Administrative Agent or the Purchaser in such Contract or the proceeds
thereof,
(xx) with respect to such Receivable, there is only one
original executed Contract, which will, together with the related
records, be conveyed hereunder by the Seller to the Purchaser and,
pursuant to this Agreement, will be held by the Servicer as bailee of
the Administrative Agent and
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the Purchaser, and no other custodial agreements are in
effect with respect thereto, and
(xxi) the applicable Dealer with respect thereto shall have
been solvent at the time of, and immediately after giving effect to,
the transfer of such Receivable to the CFC.
"ERISA" means the Employee Retirement Income Security Act of
1974 and the rules and regulations thereunder, as amended from time to time.
"Facility Limit" means $700,000,000.
"Finance Charges" means, with respect to any Receivable and its
related Contract, any finance, interest or similar charges owing by an Obligor
pursuant to such Contract, including, without limitation, any charge payable
in connection with any extension or adjustment under such Contract (without
regard to whether any such extension or adjustment is permitted under the
terms of this Agreement).
"Financed Vehicle" means an automobile or light-duty truck,
together with all accessions thereto, securing an Obligor's indebtedness under
the applicable Contract.
"Fixed Value Payment" means the dollar amount of the final
Balloon Payment under a Receivable which was created under the Gold Key Plus
Program.
"Gold Key Plus Program" means a retail installment sale program
offered by CFC to Obligors which the final payment is a Balloon Payment that
may be made by the Obligor by (1) payment in full in cash of the Fixed Value
Payment, (2) return of the Financed Vehicle to the Servicer in lieu of paying
the Fixed Value Payment in cash provided that certain conditions are satisfied
or (3) refinancing the Fixed Value Payment in accordance with certain
conditions.
"Hedging Proceeds" means any amount payable by CFC to the
Administrative Agent under the Swap Confirmation.
"Insolvency Event" means, with respect to a specified Person,
(a) the filing of a decree or order for relief by a court having jurisdiction
in the premises in respect of such Person or any substantial part of its
property in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its
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<PAGE>
property, or ordering the winding-up or liquidation of such Person's affairs,
and such decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or (b) the commencement by such Person of a voluntary
case under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by such Person to the
entry of an order for relief in an involuntary case under any such law, or the
consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
making by such Person of any general assignment for the benefit of creditors,
or the failure by such Person generally to pay its debts as such debts become
due, or the taking of action by such Person in furtherance of any of the
foregoing.
"Insurance Policy" means (i) any comprehensive and collision,
fire, theft or other insurance policy maintained by an Obligor with respect to
one or more Financed Vehicles, and (ii) any credit, life or disability
insurance maintained by an Obligor in connection with any Contract.
"Investment" means the aggregate amount of cash paid by the
Purchaser to the Seller for the Purchase, less the amount of all Collections
received and applied as reductions of Investment pursuant to Article V.
"Liquidated Receivable" means any Receivable liquidated by the
Servicer whether through the sale of a Financed Vehicle or otherwise.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the monies collected in respect thereof, from whatever source on a
Liquidated Receivable during the month in which such Receivable became a
Liquidated Receivable, net of the sum of any amounts expended by the Servicer
in connection with such liquidation and any amounts required by law to be
remitted to the Obligor on such Liquidated Receivable.
"Liquidity Facilities" means each of the committed loan
facilities, lines of credit and other financial accommodations available to
the Purchaser to support the liquidity of the Purchaser's commercial paper
notes and medium term notes.
"Moody's" means Moody's Investors Service, Inc.
"Net Loss" for a month means the sum of the Aggregate Principal
Balance of all Purchased Receivables which are deemed to be uncollectible for
such month, minus any Liquidation Proceeds and Recoveries received during such
month, plus any
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losses resulting from disposition expenses paid during such
month.
"Net Loss Ratio" means, as of the last day of any month, a
fraction, expressed as an annualized percentage, the numerator of which is the
product of (i) the sum of the Net Loss for such month and the two immediately
preceding months and (ii) a factor of 4, and the denominator of which is the
average of the Aggregate Principal Balance on the first day of such calendar
month and the first day of the two immediately preceding months, provided,
that, for purposes of determining the Net Loss Ratio (a) for the month of July
1996, the numerator shall be the product of (i) the Net Loss for the month of
July 1996 and (ii) a factor of 12, and the denominator shall be the Aggregate
Principal Balance on the first day of July 1996 and (b) for the month of
August 1996, the numerator shall be the product of (i) the sum of the Net Loss
for July and August 1996 and (ii) a factor of 6, and the denominator shall be
the average of the Aggregate Principal Balance on the first day of July 1996
and the first day of August 1996.
"Obligor" means any Person which is obligated to make
payment on a Receivable.
"Operating Expense Fee" means the percentage used to determine
the fee payable by the Seller to the Purchaser, as described in Section 3.1.3.
"Person" means any corporation, natural person, firm, joint
venture, partnership, limited liability company, trust, unincorporated
organization, enterprise, government or any department or agency of any
government.
"Principal Balance" means with respect to any Receivable the
outstanding principal balance thereof determined in accordance with the Credit
and Collection Policy and the Servicer's customary calculation methods,
provided, that with respect to a Receivable identified as a "Fixed Value
Receivable," the "Principal Balance" shall not include the Fixed Value
Payment.
"Purchase" has the meaning assigned to that term in
Section 2.1.
"Purchase Date" means the date on which the conditions
precedent to the Purchase described in Section 4.1 have been satisfied or
waived.
"Purchase Discount" has the meaning assigned to that
term in Section 3.1.1.
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"Purchase Premium" has the meaning assigned to that
term in Section 3.1.2.
"Purchased Receivable" means a Receivable arising under a
Contract listed on the Schedule of Contracts delivered to the Administrative
Agent prior to the Purchase Date.
"Purchaser" means Asset Securitization Cooperative
Corporation and its successors and assigns.
"Realized Losses" means, with respect to any Receivable that
becomes a Liquidated Receivable, the excess of the Principal Balance of such
Liquidated Receivable over Liquidation Proceeds
to the extent allocable to principal.
"Receivable" means the indebtedness and other obligations of an
Obligor arising under a Contract, whether such indebtedness or other
obligations constitute accounts, chattel paper, instruments or general
intangibles, and including, without limitation, the obligation to pay any
Finance Charges with respect thereto.
"Receivables Files" means the documents specified in
Section 6.3.
"Recoveries" means, with respect to any Receivable that becomes
a Liquidated Receivable, monies collected in respect thereof, from whatever
source, during any month following the month in which such Receivable became a
Liquidated Receivable, net of the sum of any amounts expended by the Servicer
in connection with such liquidation and any amounts required by law to be
remitted to the Obligor on such Liquidated Receivable.
"Related Security" means, with respect to any Receivable:
(i) all of the Seller's interest in the Financed Vehicle, the
financing of the purchase of which gave rise to such Receivable,
including, without limitation, all of the Seller's right, title and
interest in and to the Insurance Policies with respect thereto, and
all warranties, indemnities, service obligations and other contract
rights issued or granted by, or otherwise existing under applicable
law against, the manufacturer or Dealer in respect of such Financed
Vehicle,
(ii) all other security interests or liens and property subject
thereto from time to time, if any, purporting to secure payment of
such Receivable, whether pursuant to the Contract related to such
Receivable, or otherwise,
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together with all financing statements signed by an Obligor describing
any collateral securing such Receivable, and including, without
limitation, all security interests or liens, and property subject
thereto, granted by any Person (whether or not the primary Obligor on
such Receivable) under or in connection therewith,
(iii) all guaranties, powers of attorney, indemnities,
warranties, letters of credit and proceeds thereof and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivable, whether pursuant to
the Contract related to such Receivable or otherwise,
(iv) all of the Seller's right, title and interest in, to and
under any instrument, document or agreement relating to the transfer
of such Receivable by the applicable Dealer to CFC and, in turn, by
CFC to the Seller, and all claims against such Dealer or CFC arising
from or in connection with the purported transfer of such Receivable
to CFC and, in turn, to the Seller,
(v) all books, records and other information relating to such
Receivable, including, without limitation, all Contracts, computer
programs, tapes, discs, punch cards, data processing software and
related rights and property (but excluding any proprietary software
and related programs of the Servicer and the Seller),
(vi) all service contracts and other contracts and
agreements relating to such Receivable, and
(vii) all proceeds of any of the foregoing.
"Required Insurance" means an Insurance Policy with respect to
a Financed Vehicle (i) that has been issued by an insurance company acceptable
to the Administrative Agent or by a government-sponsored insurance company,
assigned risk pool or joint underwriting association located within or
organized under the auspices of a single state in the United States and
otherwise acceptable to the Administrative Agent, (ii) that provides
comprehensive collision, fire, theft and other physical damage coverage, (iii)
that is in an amount not less than the market value of the applicable Financed
Vehicle and (iv) that is fully assignable to Persons having a security
interest in the Financed Vehicle.
"Reserve" means an amount equal to 7.0% of the
Investment as of the Purchase Date.
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"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc.
"Sale Documents" means this Agreement, the Exhibits hereto to
which the Seller is a party and all other certificates, instruments,
agreements and documents executed from time to time by the Seller in
connection with the transactions contemplated in this Agreement.
"Schedule of Contracts" means the Microfiche containing a list
of Contracts delivered to the Administrative Agent.
"Seller" means Premier Receivables L.L.C., a Michigan limited
liability company, and its successors and permitted assigns.
"Servicer" means CFC or any replacement thereof under Article
VI.
"Servicer Default" has the meaning assigned to that term in
Section 6.2.
"Servicer Fee" means the percentage used to determine the fee
payable by the Purchaser to the Servicer as described in Section 3.1.4.
"Servicer Report" means the report in the form of Exhibit A
hereto to be provided by the Servicer in accordance with Section 5.3 of this
Agreement, which report shall include the Delinquency Ratio and the Net Loss
Ratio for the applicable month.
"Settlement Date" means the 20th day of each calendar month (or
if such 20th day is not a Business Day, the next succeeding Business Day).
"Settlement Period" means a calendar month.
"Swap Confirmation" means the Swap Confirmation dated as of
June 27, 1996 executed pursuant to the Interest Rate Swap Agreement dated as
of December 10, 1987 between Canadian Imperial Bank of Commerce and CFC, as
such agreement may be amended, supplemented or replaced from time to time.
ARTICLE II: THE SALE AND PURCHASE
SECTION 2.1. Purchase. Upon the terms and subject to the
conditions set forth herein, effective as of the Purchase Date, (i) the Seller
hereby sells, transfers and assigns to the
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Purchaser all of the Seller's right, title and interest to and in the
Purchased Receivables, together with the Related Security and Collections from
and after the Cut-Off Date relating to such Purchased Receivables, (ii) the
Purchaser hereby purchases and accepts the transfer and assignment of all of
the Seller's right, title and interest to and in the Purchased Receivables,
together with the Related Security and Collections relating to such Purchased
Receivables (the foregoing sale, transfer and assignment being referred to as
the "Purchase"), and (iii) the Purchaser hereby, without any further action
hereunder, does sell, transfer, assign, set over and otherwise convey to the
Seller, effective as of the Purchase Date, without recourse, representation or
warranty of any kind, all right, title and interest of the Purchaser in and to
the Fixed Value Payments, all monies due and to become due and all amounts
received with respect thereto and all proceeds thereof.
SECTION 2.2. Purchase Price. The purchase price payable by the
Purchaser for the Purchase shall equal the Aggregate Principal Balance as of
the Cut-Off Date. Such purchase price shall be comprised of a cash component
and a deferred payment component. The cash component of the purchase price
shall be paid by the Purchaser to the Seller on the Purchase Date and shall
equal the aggregate Principal Balance of the Purchased Receivables as of the
Cut-Off Date minus the Reserve calculated as of such Purchase Date. Upon and
after the reduction of the Investment to zero and the payment in full of all
other amounts due to the Purchaser hereunder, all Collections or other cash
received by the Purchaser on account of Receivables and the interest of the
Purchaser therein and all Receivables held by or on behalf of the Purchaser
will be transmitted in the form received by the Purchaser to the Seller. The
transmission of such amount by the Purchaser shall be deemed to satisfy the
payment of the deferred payment component of the purchase price under this
Section 2.2.
SECTION 2.3. Seller's Optional Termination. The Seller shall
have the right, on five (5) Business Days' written notice to the
Administrative Agent, at any time following the reduction of the Aggregate
Principal Balance to a level that is less than ten percent (10%) of the
Aggregate Principal Balance on the Purchase Date, to repurchase from the
Purchaser all, and not part, of the then outstanding Purchased Receivables,
together with the Related Security and Collections relating to such Purchased
Receivables. The purchase price in respect thereof shall be an amount equal to
the Investment outstanding at such time plus all other amounts payable
(whether due or accrued) hereunder or under any other Sale Document to the
Purchaser or the Administrative Agent at such time. Such repurchase shall be
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without representation, warranty or recourse of any kind by, on the part of or
against the Purchaser or the Administrative Agent.
ARTICLE III: FEES AND EXPENSES
SECTION 3.1. Determination of Carrying Costs. The following
rates shall be utilized in calculating the amount of Carrying Costs to be
distributed each Settlement Period out of Collections of Purchased
Receivables:
SECTION 3.1.1. Purchase Discount. (a) A Purchase Discount equal
to the weighted average of the following:
(i) the weighted average of the discount rates on all
commercial paper notes issued at a discount during the related Settlement
Period (other than commercial paper notes the proceeds of which are used by
the Purchaser to (x) purchase receivables, or extend financing secured
thereby, at a fixed interest rate or (y) conduct any arbitrage activities of
the Purchaser), converted to an annual yield-equivalent rate on the basis of a
360-day year;
(ii) the weighted average of the annual interest rates payable
on all interest-bearing commercial paper notes issued during the related
Settlement Period (other than the commercial paper notes described in clauses
(x) and (y) of paragraph (i) above), on the basis of a 360-day year; and
(iii) the weighted average of the annual interest rates
applicable to any Liquidity Facilities under which the Purchaser has borrowed
loans during the related Settlement Period (which loans shall be borrowed only
after a determination by the Purchaser that financing its activities during
such period by issuing commercial paper notes would not be practicable or
cost-efficient;
provided that, to the extent that the Investment is funded by a specific
issuance of commercial paper notes and/or by a specific borrowing under a
Liquidity Facility or a Credit Facility, the Purchase Discount shall equal the
rate or weighted average of the rates applicable to such issuance or
borrowing, provided, further, that, for purposes of the foregoing, the
interest rates applicable under any Liquidity Facility shall not exceed the
reserved adjusted "LIBO Rate" quoted by the Administrative Agent plus 0.25%
per annum and the interest rates under any Credit Facility shall not exceed
the rate of interest per annum published on such day (or, if not then
published, on the most recently preceding day) in The Wall Street Journal as
the "Prime Rate" plus 2.0% per annum.
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(b) Two calendar days prior to the end of each calendar month
(or if such day is not a Business Day, the immediately preceding Business
Day), the Administrative Agent shall determine the Purchase Discount pursuant
to (a) above by using the actual Purchase Discount for each day elapsed in
such month and estimating the Purchase Discount for each remaining day in such
month. In addition, the Administrative Agent shall concurrently notify the
Servicer of the actual Purchase Discount for any days during the immediately
preceding Settlement Period with respect to which the Purchase Discount was
estimated, and the difference, if any, between the Carrying Costs actually
paid using the estimated Purchase Discount and the Carrying Costs which would
have been paid had the actual Purchase Discount been available (such
differential being the "Carrying Costs True-up Amount"). If the amount of
Carrying Costs paid for such immediately preceding Settlement Period based
upon an estimated Purchase Discount was less than the amount of Carrying Costs
for such Settlement Period based upon the actual Purchase Discount, the amount
of Collections remitted to the Administrative Agent pursuant to Section 5.2(i)
shall be increased by an amount equal to the Carrying Costs True-up Amount,
or, if the amount of Carrying Costs paid for such immediately preceding
Settlement Period based upon an estimated Purchase Discount was greater than
the amount of Carrying Costs for such Settlement Period based upon the actual
Purchase Discount, the amount of Collections remitted to the Administrative
Agent pursuant to Section 5.2(i) shall be decreased by an amount equal to the
Carrying Costs True-up Amount.
SECTION 3.1.2. Purchase Premium. A Purchase Premium equal to
0.18% per annum.
SECTION 3.1.3. Operating Expense Fee. An Operating Expense Fee
to cover routine operating expenses of the Purchaser incurred during the
immediately preceding Settlement Period, including fees payable to commercial
paper dealers, issuing and paying agents, rating agencies, printers and
auditors. The Operating Expense Fee shall equal 0.06% per annum; provided that
(i) the Operating Expense Fee in respect of commercial paper dealer
commissions shall not exceed a rate per annum equal to 0.05% and (ii) the
Operating Expense Fee in respect of issuing and paying agent fees, rating
agency fees, printing and all other routine operating expenses shall not
exceed a rate per annum equal to 0.01%. If the amount of any Operating Expense
Fee paid for any Settlement Period exceeds the actual amount of the operating
costs and expenses of the Purchaser incurred during such period, then the
Purchaser will annually remit the excess to the Seller (it being understood
that the determination and allocation of such excess shall be determined based
upon the
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average daily Investment outstanding hereunder and the average daily
investment of the Purchaser under receivables purchase facilities with other
sellers).
SECTION 3.1.4. Servicer Fee. A Servicer Fee equal to 1.0% per
annum, which fee shall be remitted by the Purchaser to the Servicer. If CFC is
acting as the Servicer, then the Servicer shall retain an amount equal to the
Servicer Fee (in full satisfaction of the payment of such fee to the Servicer)
out of amounts required to be remitted by the Servicer in accordance with
Section 5.2.
SECTION 3.2. Interest on Unpaid Amounts. To the extent that the
Seller or Servicer fails to pay when due to the Purchaser or the
Administrative Agent any fee, expense or other amount payable hereunder or
under any Sale Document, interest shall be due and payable on such unpaid
amount, for each day until paid in full, at the rate of one percent in excess
of the rate of interest per annum published on such day (or, if not then
published, on the most recently preceding day) in The Wall Street Journal as
the "Prime Rate". Changes in the rate payable hereunder shall be effective on
each date on which a change in the "Prime Rate" is published.
ARTICLE IV: CONDITIONS PRECEDENT TO PURCHASE
SECTION 4.1. Conditions Precedent to Purchase. The following
conditions must be satisfied before the Purchaser will make the Purchase:
SECTION 4.1.1. Membership in the Purchaser. CFC will have
joined the Purchaser as a member by delivering to the Purchaser an executed
Membership Agreement in the form of Exhibit B, together with the sum of
$10,000 as an investment in the Purchaser. Such investment will be refunded by
the Purchaser to CFC when the Investment is reduced to zero and all other
amounts payable by the Seller hereunder have been paid in full.
SECTION 4.1.2. Absence of Liens. The Administrative Agent will
have received evidence acceptable to it (including Uniform Commercial Code
search reports) that all Purchased Receivables, Related Security and all
proceeds thereof are free and clear of any Adverse Claim.
SECTION 4.1.3. Financing Statements. The Administrative Agent
will have received acknowledgment copies of UCC-1 financing statements, and
all other documents reasonably requested by the Administrative Agent, to
evidence the perfection
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of the Purchaser's interest in the Purchased Receivables, the
Related Security and the Collections.
SECTION 4.1.4. Schedule of Contracts. The Administrative Agent
will have received the Schedule of Contracts.
SECTION 4.1.5. Seller Resolutions. The Administrative Agent
will have received a certificate of the Seller's secretary or assistant
secretary attesting to:
(a) the resolutions of the majority interest of the Seller's
members (or an executive committee thereof) authorizing the execution by the
Seller of the Sale Documents to be executed by the Seller;
(b) the names and signatures of the officers of the Seller
authorized to execute the Sale Documents to be executed by the Seller; and
(c) the completeness and correctness of the attached articles
of organization (certified by the appropriate Secretary of State) and
operating agreement of the Seller.
SECTION 4.1.6. Servicer Resolutions. The Administrative Agent
will have received a certificate of the Servicer's secretary or assistant
secretary attesting to:
(a) the resolutions of the Servicer's Board of Directors (or an
executive committee thereof) authorizing the execution by the Servicer of the
Sale Documents to be executed by the Servicer;
(b) the names and signatures of the officers of the Servicer
authorized to execute the Sale Documents to be executed by the Servicer; and
(c) the completeness and correctness of the attached articles
of incorporation (certified by the appropriate Secretary of State) and by-laws
of the Servicer.
SECTION 4.1.7. Legal Opinion of Counsel to the Seller and the
Servicer. The Administrative Agent will have received an opinion from counsel
to the Seller and the Servicer, substantially in the form attached hereto as
Exhibit C, together with such other matters as the Administrative Agent or the
Purchaser may reasonably request.
SECTION 4.1.8. Good Standing Certificates. The Administrative
Agent will have received certificates of recent
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date issued by the Secretary of State of the State of Michigan, as to the
legal existence and good standing of the Seller and the Servicer.
SECTION 4.1.9. Representations and Covenants. On and as of the
date of the Purchase (i) the representations of the Seller and the Servicer in
Article IX shall be true and correct with the same effect as if made on such
date and (ii) the Seller and the Servicer shall be in compliance with the
covenants set forth in this Agreement. The Seller and the Servicer, by
accepting the proceeds of such Purchase, shall be deemed to have certified as
to the truth and accuracy of each of the matters described in the foregoing
clauses (i) and (ii), both before and after giving effect to such Purchase.
SECTION 4.1.10. Other Documents. The Administrative Agent and
the Purchaser will have received all other documents that either of them had
reasonably requested from the Seller or the Servicer.
SECTION 4.1.11. Structuring Fee. The Seller shall have paid a
structuring fee to the Administrative Agent in the amount of $55,000.
ARTICLE V: SETTLEMENT PROCEDURES
SECTION 5.1. Collections. The Servicer shall segregate all
Collections from other funds of the Servicer and the Seller within two
Business Days of receipt thereof and hold such Collections in trust for the
Purchaser in a separate bank account, provided, however, notwithstanding the
foregoing, for so long as (i) CFC remains the Servicer, (ii) no Servicer
Default shall have occurred and be continuing and (iii) CFC maintains a
long-term unsecured senior debt rating of at least BBB- by S&P and Baa3 by
Moody's, the Servicer shall not be required to segregate all Collections and
shall remit such Collections with respect to each Settlement Period to the
Administrative Agent on the Settlement Date relating to such Settlement
Period.
SECTION 5.2. Application of Collections on Settlement Dates.
The Servicer will, by 3:00 P.M. (New York time) on each Settlement Date, from
Collections received during the preceding Settlement Period, pay to the
Administrative Agent and the Administrative Agent shall distribute such
Collections, together with any Hedging Proceeds received by the Administrative
Agent with respect to such Settlement Period, to the Purchaser (i) first, an
amount equal to the Carrying Costs for the Settlement Period (as such amount
shall be increased or decreased by the Carrying Costs True-up Amount, if any,
for the immediately
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preceding Settlement Period as determined pursuant to Section 3.1.1(b)), (ii)
second, the amount, if any, of increased costs notified to the Seller pursuant
to Section 9.3 (a) which are then due and payable, and (iii) third, all
remaining Collections as a reduction to Investment.
SECTION 5.3. Servicer Report. The Servicer will provide the
Purchaser, either in writing or electronically, with a Servicer Report with
respect to each Settlement Period no later than 15 days following the end of
such Settlement Period (or, if such 15th day is not a Business Day, the next
succeeding Business Day).
ARTICLE VI: SERVICING OF RECEIVABLES
SECTION 6.1. Appointment and Duties of Servicer.
(a) The Purchaser and the Seller each hereby appoint CFC as the
Servicer and CFC accepts such appointment. The Servicer, for the benefit of
the Purchaser (or the extent provided herein), shall manage, service,
administer and make collections on the Purchased Receivables with reasonable
care, using that degree of skill and attention that the Servicer exercises
with respect to all comparable automotive receivables that it services for
itself or others. The Servicer's duties shall include collection and posting
of all payments, responding to inquiries of Obligors on such Purchased
Receivables, investigating delinquencies, sending payment coupons to Obligors,
reporting tax information to Obligors, accounting for collections and
furnishing reports required hereunder. The Servicer shall follow its customary
standards, policies and procedures in performing its duties as Servicer.
Without limiting the generality of the foregoing, the Servicer is authorized
and empowered to execute and deliver, on behalf of itself, the Seller, the
Purchaser, the Administrative Agent or any of them, any and all instruments of
satisfaction or cancellation, or partial or full release or discharge, and all
other comparable instruments, with respect to such Purchased Receivables or to
the Financed Vehicles securing such Purchased Receivables. If the Servicer
shall commence a legal proceeding to enforce a Purchased Receivable, the
Purchaser shall thereupon be deemed to have automatically assigned, solely for
the purpose of collection, such Purchased Receivables to the Servicer. If in
any enforcement suit or legal proceeding it shall be held that the Servicer
may not enforce a Purchased Receivable on the ground that it shall not be a
real party, in interest or a holder entitled to enforce such Purchased
Receivable, the Administrative Agent shall, at the Servicer's expense and
direction, take steps to enforce such Receivable, including bringing suit in
its name
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or the name of the Purchaser. The Purchaser shall upon the written request of
the Servicer furnish the Servicer with any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties hereunder.
(b) On behalf of the Purchaser, the Servicer shall use
commercially reasonable efforts, consistent with its customary servicing
procedures, to repossess or otherwise convert the ownership of the Financed
Vehicle securing any Purchased Receivable as to which the Servicer shall have
determined eventual payment in full is unlikely. The Servicer shall follow
such customary and usual practices and procedures as it shall deem necessary
or advisable in its servicing of automotive receivables, which may include
reasonable efforts to realize upon any recourse to Dealers and selling a
repossessed Financed Vehicle at public or private sale. The foregoing sale of
a repossessed Financed Vehicle shall be subject to the provision that, in any
case in which a repossessed Financed Vehicle shall have suffered damage, the
Servicer shall not expend funds in connection with the repair of such
repossessed Financed Vehicle unless it shall determine in its discretion that
such repair will increase the Liquidation Proceeds by an amount greater than
the amount of such expense.
(c) The Servicer shall, in accordance with its customary
servicing procedures, take such steps as are necessary to maintain perfection
of the security interest created by each Purchased Receivable in the related
Financed Vehicle. The Servicer is hereby authorized to take such steps as are
necessary to re-perfect such security interest on behalf of the Purchaser and
the Seller in the event of the relocation of a Financed Vehicle or for any
other reason. The Servicer shall not release the Financed Vehicle securing any
Purchased Receivable from the security interest granted by such Purchased
Receivable in whole or in part except in the event of payment in full by the
Obligor thereunder or repossession, nor shall the Servicer impair the rights
of the Purchaser in such Purchased Receivable, nor shall the Servicer increase
the number of scheduled payments due under a Purchased Receivable. The
Servicer shall inform the Purchaser and the Seller promptly, in writing, upon
the discovery of any breach pursuant to this Section 6.01(c). Unless the
breach shall have been cured by the last day of the second Settlement Period
following such discovery (or, at the Servicer's election, the last day of the
first following Settlement Period), the Servicer shall purchase any Purchased
Receivable materially and adversely affected by such breach as of such last
day.
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SECTION 6.2. Replacement of Servicer.
(a) If any of the following events (a "Servicer Default") shall
occur and be continuing:
(i) any failure by the Servicer to make any payment or deposit
required to be made hereunder and the continuance of such failure for
a period of five Business Days;
(ii) any representation or warranty made by the Servicer in
Section 7.1 or any information set forth in a Servicer Report or other
certificate delivered to the Administrative Agent, shall prove to have
been incorrect in any material respect when made, which continues to
be incorrect in any material respect for a period of [sixty] days
after the earlier of the date on which an officer of the Servicer has
actual knowledge thereof and the date on which written notice thereof
has been given to the Servicer requiring the same to be remedied, by
the Purchaser or the Administrative Agent;
(iii) failure on the part of the Servicer to observe or perform
in any material respect any other term, covenant or agreement in this
Agreement or any other Sale Document which continues unremedied for
sixty days after the earlier of the date on which an officer of the
Servicer has actual knowledge of such failure and the date on which
written notice of such failure has been given to the Servicer
requiring the same to be remedied, by the Purchaser or the
Administrative Agent; or
(iv) an Insolvency Event with respect to the Seller or the
Servicer,
then, so long as such Servicer Default shall not have been remedied, the
Purchaser shall have the right to remove CFC (or any successor Servicer) as
Servicer by giving written notice thereof to the Servicer. On and after
receipt of such written notice, all authority and power of the Servicer under
this Agreement shall, without further action, pass to and be vested in such
successor Servicer as may be appointed by the Purchaser.
(b) If CFC is removed as Servicer, CFC shall transfer to any
successor Servicer designated by the Purchaser all records, correspondence and
documents (including computer software) requested by the Purchaser or such
successor Servicer and to permit such Persons to have access to, and to copy,
all software used by the Servicer in the collection, administration or
monitoring of the Purchased Receivables. In the case of software that is then
licensed by, or otherwise made available
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to, the Servicer from or by any third party, the Servicer shall use its best
efforts to obtain such consents and otherwise take all actions necessary in
order to enable any Servicer hereunder to succeed to all rights of CFC to the
quiet use and enjoyment of such software for the purpose of discharging the
obligations of the Servicer under or in connection with the Sale Documents.
(c) Following the removal of CFC as Servicer, (i) the Purchaser
and the Administrative Agent may (A) notify Obligors of the ownership interest
of the Purchaser hereunder in the Purchased Receivables and the Related
Security, (B) notify each issuer of an Insurance Policy of the ownership
interest of the Purchaser hereunder in the Purchased Receivables and in the
Related Security (including the applicable Financed Vehicle and Insurance
Policy thereon), and (C) direct the Seller to, whereupon the Seller
immediately shall, note the interest of the Purchaser hereunder on each
Certificate of Title relating to each Financed Vehicle and (ii) the Purchaser
and the Administrative Agent shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and remedies
provided under the Uniform Commercial Code of the applicable jurisdiction and
other applicable laws, which rights shall be cumulative.
SECTION 6.3. Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Purchaser and the Seller hereby irrevocably appoint the Servicer, and the
Servicer hereby accepts such appointment, to act for the benefit of the
Purchaser and the Seller as custodian of the following documents or
instruments which are hereby or will hereby be constructively delivered to the
Administrative Agent, as pledgee of the Seller, as of the Closing Date with
respect to each Purchased Receivable:
(a) the fully executed original of the Contract related to such
Purchased Receivable;
(b) the original credit application fully executed by the
Obligor;
(c) the original certificate of title or such documents that
the Servicer or the Seller shall keep on file, in accordance with its
customary procedures, evidencing the security interest of the Seller
in the Financed Vehicle; and
(d) any and all other documents that the Servicer or the Seller
shall keep on file, in accordance with its customary procedures,
relating to a Purchased Receivable, an Obligor or a Financed Vehicle.
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SECTION 6.4. Duties of Servicer as Custodian. (a) Safekeeping.
The Servicer shall hold the Receivable Files as custodian for the benefit of
the Seller and the Purchaser and maintain such accurate and complete accounts,
records and computer systems pertaining to each Receivable File as shall
enable the Seller to comply with this Agreement. In performing its duties as
custodian the Servicer shall act with reasonable care, using that degree of
skill and attention that the Servicer exercises with respect to the receivable
files relating to all comparable automotive receivables that the Servicer
services for itself or others. The Servicer shall conduct, or cause to be
conducted, periodic audits of the Receivable Files held by it under this
Agreement and of the related accounts, records and computer systems, in such a
manner as shall enable the Seller or the Purchaser to verify the accuracy of
the Servicer's record keeping. The Servicer shall promptly report to the
Seller and the Purchaser any failure on its part to hold the Receivables Files
and maintain its accounts, records and computer systems as herein provided and
shall promptly take appropriate action to remedy any such failure. Nothing
herein shall be deemed to require an initial review or any periodic review by
the Seller or the Purchaser of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule 1 or
at such other offices to which the Servicer shall, in its discretion, relocate
such Receivables File with notice to the Administrative Agent. The Servicer
shall make available to the Seller and the Purchaser or their respective duly
authorized representative, attorneys or auditors a list of locations of the
Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times during normal business hours as the
Seller or the Purchaser shall instruct.
SECTION 6.5. Custodian's Indemnification. The Servicer as
custodian shall indemnify the Seller, the Purchaser and the Administrative
Agent and each of their respective officers, directors, employees and agents
for any and all liabilities, obligations, losses, compensatory damages,
payments, costs or expenses of any kind whatsoever that may be imposed on,
incurred by or asserted against the Seller, the Purchaser, the Administrative
Agent or any of their respective officers, directors, employees and agents as
the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer as custodian of the Receivable Files;
provided, however, that the Servicer shall not be liable to any indemnified
party for any portion of any such amount result from the willful misfeasance,
bad faith or negligence of such indemnified party.
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SECTION 6.6. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cut-Off Date and
shall continue in full force and effect until terminated pursuant to this
Section. If CFC shall cease to be Servicer in accordance with the provisions
of this Agreement, the appointment of such Servicer as custodian shall be
terminated by the Purchaser. The Purchaser may terminate the Servicer's
appointment as custodian at any time following the occurrence of a Servicer
Default upon written notification to the Servicer. As soon as practicable
after any termination of such appointment, the Servicer shall deliver the
Receivable Files to the Administrative Agent or to a Person designated by the
Administrative Agent at a place or places as the Administrative Agent may
reasonably designate.
ARTICLE VII: REPRESENTATIONS AND WARRANTIES
SECTION 7.1 Representations and Warranties of the Seller and
the Servicer. Each of the Seller and the Servicer makes, with respect to
itself, the following representations and warranties to the Purchaser:
(a) It is a limited liability company or corporation, as
applicable, duly organized or incorporated, validly existing and in good
standing under the laws of the jurisdiction of its organization or
incorporation and is duly qualified in good standing as a foreign corporation
in each jurisdiction where the failure to be so qualified could materially
adversely affect its ability to perform its obligations hereunder.
(b) The execution, delivery and performance by the Seller and
the Servicer of the Sale Documents, and the Seller's use of the proceeds of
the Purchases, are within the Seller's and the Servicer's respective corporate
powers, have been duly authorized by all necessary corporate action, do not
contravene (i) the Seller's or the Servicer's respective articles of
organization or charter, as applicable, or operating agreement or by-laws, as
applicable, or (ii) law or any contractual restriction binding on or affecting
the Seller or the Servicer, and do not result in or require the creation of
any Adverse Claim (other than pursuant hereto) upon or with respect to any of
its properties; and no transaction contemplated hereby requires compliance
with any bulk sales act or similar law.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Seller or the
Servicer of the Sale Documents, or for the perfection of or the exercise by
the Purchaser of its
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rights and remedies under the Sale Documents, except for the filing of the
financing statements referred to in Section 4.3.3.
(d) Each Sale Document constitutes the legal, valid and binding
obligation of the Seller and the Servicer, respectively, enforceable in
accordance with its terms.
(e) There is no pending or threatened action or proceeding
affecting the Seller or the Servicer or any of its subsidiaries before any
court, governmental agency or arbitrator which may materially adversely affect
(i) its financial condition or operations or (ii) its ability to perform its
obligations under the Sale Documents, or which could affect the legality,
validity or enforceability of any Sale Document or of the interest of the
Purchaser in the Purchased Receivables.
(f) The Seller is the legal and beneficial owner of the
Receivables, the Related Security and Collections, free and clear of any
Adverse Claim, except as created by this Agreement; upon consummation of the
Purchase, the Purchaser will acquire a valid and perfected first priority
ownership interest in the Purchased Receivable and in the Related Security and
the Collections with respect thereto, free and clear of any Adverse Claim
except as created by this Agreement.
(g) The information provided by the Seller to the Servicer for
use in each Servicer Report prepared under Section 5.3 and all information and
Sale Documents furnished or to be furnished at any time by the Seller to the
Administrative Agent in connection with this Agreement is or will be accurate
in all material respects as of its date, and no such document will contain any
untrue statement of a material fact or will omit to state a material fact
which is necessary to make the facts stated therein not misleading.
(h) Each Servicer Report prepared by the Servicer under Section
5.3 will be accurate in all material respects as of its date.
(i) The chief place of business and chief executive office of
the Seller and the office where the Seller keeps its records concerning the
Receivables are located at the address specified on Schedule 1 to this
Agreement (or at such other location in respect of which the Seller shall have
satisfied the requirements set forth in Section 8.4(c)).
(j) The balance sheets of the Servicer and its subsidiaries as
at December 31, 1995, and the related statements of income and retained
earnings of the Servicer and its subsidiaries for the fiscal year then ended,
copies of which have
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been furnished to the Administrative Agent, fairly present the financial
condition of the Servicer and its subsidiaries as at such date and the results
of the operations of the Servicer and its subsidiaries for the period ended on
such date, all in accordance with generally accepted accounting principles
consistently applied, and since December 31, 1995, there has been no material
adverse change in such condition or operations.
(k) The Seller is treating the conveyance of the interest in
the Purchased Receivables and the Collections under this Agreement to the
Purchaser as a sale for purposes of generally accepted accounting principles.
(l) The Servicer and the Seller are in compliance with all of
the applicable material provisions of ERISA.
(m) Other than "Chrysler Credit Corporation" (an entity which
has merged into CFC), neither the Servicer nor the Seller operates, or
originates or acquires Receivables, under any trade name, fictitious name,
assumed name or "doing business as" name.
(n) Each Purchase will constitute (i) a "current transaction"
within the meaning of Section 3(a)(3) of the Securities Act of 1933, as
amended, and (ii) a purchase or other acquisition of notes, drafts,
acceptances, open accounts receivable or other obligations representing part
or all of the sales price of merchandise, insurance or services within the
meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended.
The Seller is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(o) No proceeds of any Purchase will be used for any purpose
that violates Regulations G or U of the Board of Governors of the Federal
Reserve System.
(p) The transfer of each Purchased Receivable by a Dealer to
CFC and by CFC to the Seller shall have been made for "reasonably equivalent
value" (as such term is used under Section 548 of the Bankruptcy Code) given
by CFC to such Dealer and by the Seller to CFC and not for or on account of
"antecedent debt" (as such term is used under Section 547 of the Bankruptcy
Code) owed by such Dealer to CFC or by the Seller to CFC.
(q) With respect to each Receivable, the Seller has complied in
all material respects with the Credit and Collection Policy.
(r) The Seller is solvent; at the time of (and immediately
after) each transfer by any Dealer to the Seller of any Receivable, each of
such Dealer (to the best of the Seller's
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knowledge) and the Seller shall have been solvent; and at the time of (and
immediately after) each Purchase hereunder, the Seller shall have been
solvent.
ARTICLE VIII: COVENANTS
SECTION 8.1. Affirmative Covenants of the Seller and the
Servicer. Until the Investment is reduced to zero and all other amounts due to
the Purchaser hereunder have been paid in full, each of the Seller and the
Servicer (with respect to itself) will, unless the Purchaser has otherwise
consented in writing:
(a) Comply in all material respects with all applicable laws,
rules, regulations and orders (including all material provisions of ERISA)
with respect to it, its business and properties and all Purchased Receivables
and the Related Security and Collections related thereto.
(b) Maintain its corporate existence in the jurisdiction of its
organization or incorporation, and qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where the failure to be
so qualified could materially adversely affect its ability to perform its
obligations hereunder.
(c) At any reasonable time, permit the Purchaser or its agents
or representatives, at the expense of the Purchaser or the Administrative
Agent to visit and inspect any of its properties, to examine its books of
account and other records and files relating to Purchased Receivables
(including, without limitation, computer tapes and disks) and to discuss its
affairs, business, finances and accounts with its officers and employees.
(d) Maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate records
evidencing Purchased Receivables in the event of the destruction of the
originals thereof), and keep and maintain all records and other information,
reasonably necessary or advisable for the collection of the Purchased
Receivables (including, without limitation, records adequate to permit the
daily identification of Purchased Receivables and all Collections and
adjustments to Purchased Receivables).
(e) At its expense timely and fully perform and comply with all
material provisions and covenants required to be observed by CFC or the Seller
under the Contracts related to the Purchased Receivables.
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(f) Comply in all material respects with the Credit and
Collection Policy in regard to each Purchased Receivable and any Contract
related to such Receivable.
(g) Treat the conveyance of the interest in the Purchased
Receivables and the Collections under this Agreement as a sale for purposes of
generally accepted accounting principles.
(h) With respect to each Purchased Receivable purchased by CFC
from a Dealer and by the Seller from CFC, take all actions necessary to vest
legal and equitable title to such Purchased Receivable and the Related
Security irrevocably in the Seller (prior to the transfer of such Receivable
hereunder), including, without limitation, the filing of all financing
statements or other similar instruments or documents necessary under the UCC
of all appropriate jurisdictions (or any comparable law) to perfect the
Seller's interest in such Purchased Receivable and the Related Security and
such other action to perfect, protect or more fully evidence the interest of
the Seller as the Administrative Agent may reasonably request, provided, that
notwithstanding anything in this Agreement to the contrary, the Seller will
not be required to amend any Certificate of Title to show any Person other
than CFC as lienholder for any Financed Vehicle prior to the removal of CFC as
Servicer pursuant to Section 6.2.
SECTION 8.2 Reporting Requirements of the Servicer. Until the
Investment is reduced to zero and all amounts due to the Purchaser hereunder
have been paid in full, the Servicer will, unless the Purchaser shall
otherwise consent in writing, furnish to the Purchaser:
(a) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Servicer, balance sheets of the Servicer and its subsidiaries as of the end of
such quarter and statements of income and retained earnings of the Servicer
and its subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified by the chief
financial officer of the Servicer;
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Servicer, a copy of the annual report for
such year for the Servicer and its subsidiaries, containing audited financial
statements for such year certified by nationally recognized independent public
accountants;
(c) the Servicer Report as required under Section 5.3;
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(d) as soon as possible, and in any event within five (5) days
after the occurrence thereof, notice (which notice shall describe such event
or condition and, if applicable, the steps being taken with respect thereto by
the Person(s) affected thereby) of: (i) the occurrence of any Servicer Default
or event which with the passage of time or the giving of notice or both would
constitute a Servicer Default; (ii) any change in the rating of any
indebtedness of the Servicer by any rating agency; or (iii) the institution of
any litigation, arbitration proceeding or governmental proceeding which could
be reasonably likely to have a material adverse effect on the performance by
the Servicer of its obligations under this Agreement or the other Sale
Documents or the collectibility of the Purchased Receivables; and
(e) such other information, documents, records or reports
respecting the Purchased Receivables or the condition or operations, financial
or otherwise, of the Servicer or the Seller as the Purchaser may from time to
time reasonably request.
SECTION 8.3. Negative Covenants of the Seller and the Servicer.
Until the Investment is reduced to zero and all other amounts due to the
Purchaser hereunder have been paid in full, neither the Seller nor the
Servicer will, unless the Purchaser has otherwise consented in writing;
(a) Except as provided herein, sell, assign (by operation of
law or otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon or with respect to any Purchased Receivables, the Related
Security or any Collections or assign any right to receive income in respect
thereof.
(b) Amend or otherwise modify the terms of any Purchased
Receivable, or amend, modify or waive any term or condition of any Contract
related thereto, in each case, in any manner which is inconsistent with the
Credit and Collection Policy.
SECTION 8.4. Protection of the Purchaser's Interest. (a) Until
the Investment is reduced to zero and all other amounts due to the Purchaser
hereunder have been paid in full, each of the Seller and the Servicer agrees
that from time to time, at its expense, it will promptly execute and deliver
all instruments and documents and take all action that the Administrative
Agent may from time to time request in order to perfect, evidence and protect
the validity, enforceability, perfection and priority of the Administrative
Agent's and the Purchaser's interests in the Purchased Receivables, the
Related Security and the Collections and to enable the Administrative Agent
and/or the Purchaser to exercise or enforce any of its
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rights hereunder. Without limiting the generality of the foregoing, the Seller
and the Servicer will: (i) on or prior to the date hereof, mark its master
data processing records and, upon the request of the Administrative Agent, its
other files, books and records relating to the Purchased Receivables with a
legend describing the Administrative Agent's and the Purchaser's interests
therein; and (ii) upon the request of the Administrative Agent, execute and
file such financing or continuation statements or amendments thereto or
assignments thereof as may be requested by the Administrative Agent;
(b) To the fullest extent permitted by applicable law, the
Administrative Agent shall be permitted to sign and file continuation
statements and amendments thereto and assignments thereof without the Seller's
signature. Carbon, photographic or other reproduction of this Agreement or any
financing statement shall be sufficient as a financing statement.
(c) In the event the Seller shall change its name, identity or
corporate structure (within the meaning of Section 9-402(7) of any applicable
enactment of the Uniform Commercial Code) or relocate its chief executive
office or, except in connection with the previously disclosed reorganization
of its branch offices to 25 zone offices or any other routine relocation of
such zone offices in the same state, any office where the originals of the
Contracts or the Certificates of Title or other material records relating to
the Purchased Receivables are kept: the Seller shall notify the Administrative
Agent thereof and promptly file all financing statements, instruments and
other documents requested by the Administrative Agent in connection with such
change or relocation. In the event the Seller moves its chief executive office
to a location which may charge taxes, fees, costs, expenses or other charges
to perfect the Administrative Agent's and the Purchaser's interests in the
Purchased Receivables or the Related Security and Collections related thereto,
the Seller shall pay, or reimburse the Administrative Agent and the Purchaser
in respect of, all such taxes, fees, costs, expenses and other charges and all
other costs and expenses incurred in order to maintain the enforceability of
this Agreement and/or the Administrative Agent's and the Purchaser's interests
in the Purchased Receivables and the Related Security and Collections related
thereto.
(d) In each case under this Agreement in which the Seller or
any of its Affiliates is required to note its name on a UCC financing
statement, Certificate of Title or similar instrument or document, it shall
use its current legal name as set forth in its articles of organization,
articles or certificate of incorporation, certificate of organization or
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similar constitutional document filed with the chartering authority in the
jurisdiction in which such Person is organized. Such Person shall not use for
such purpose any prior name, trade name, "doing business as" name or other
fictitious name unless prior notice thereof is given to the Administrative
Agent.
ARTICLE IX: INDEMNIFICATIONS; INCREASED COSTS
SECTION 9.1. Indemnification by Seller of Purchaser, etc.
Without limiting any other rights which the Purchaser, the Administrative
Agent and their respective officers, directors, employees, agents and
Affiliates may have hereunder or under applicable law, the Seller hereby
indemnifies such parties and holds them harmless from and against any and all
damages, losses, claims, liabilities and related costs and expenses (including
attorneys' fees and disbursements) incurred by any of them arising out of or
resulting from this Agreement or the purchase by the Purchaser of any interest
in the Purchased Receivables or the Related Security and Collections related
thereto, including, without limitation:
(a) the reliance by the Administrative Agent or the Purchaser
on any representation or warranty made by the Seller (or any of its officers)
under or in connection with this Agreement or any Sale Document, which was
incorrect in any material respect when made;
(b) the failure by the Seller to comply with any covenant set
forth in this Agreement;
(c) the failure to vest and maintain in the Purchaser, or to
transfer to the Purchaser, legal and equitable title to, and ownership of, an
undivided percentage first priority perfected ownership interest in the
Purchased Receivables, free and clear of any Adverse Claim;
(d) the transfer by the Seller to any Person (other than the
Purchaser or the Administrative Agent) of any interest in any Purchased
Receivables or Related Security;
(e) the Seller's use of proceeds of the Purchase;
(f) the failure timely to file financing statements or other
similar instruments or documents under the Uniform Commercial Code of any
applicable jurisdiction or other applicable laws with respect to any Purchased
Receivables, whether at the time of the Purchase or otherwise;
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(g) the return or transfer by the Servicer of any portion of
Collections to the Seller or any other Person for any reason whatsoever;
(h) any dispute, claim, offset or defense of any Obligor to the
payment of any Purchased Receivable (including a defense based on such
Purchased Receivable's or the related Contract's not being a legal, valid and
binding obligation of such Obligor enforceable against it in accordance with
its terms, but excluding a failure to pay as a result of the financial
inability of an Obligor to pay such Purchased Receivable), or any other claim
resulting from the sale, use, operation or ownership of or defects in or
breaches of warranties with respect to, the merchandise or services relating
to such Receivable or the furnishing or failure to furnish such merchandise or
services;
(i) the Seller's failure to pay when due any taxes (including
sales, excise or personal property taxes) payable in connection with the
Purchased Receivables or the Related Security;
(j) the failure by the Seller to comply with any applicable
law, rule or regulation with respect to any Purchased Receivable or Related
Security, or the nonconformity of any Receivable or Related Security with any
such applicable law, rule or regulation; or
(k) any Purchased Receivable which is treated as or represented
by the Seller to be an Eligible Receivable which is not as of the date of the
Purchase an Eligible Receivable;
(l) the failure of the Servicer to perform its duties as
custodian as describe in Article VI;
(m) the disbursement of any proceeds of such Required Insurance
to any Person other than the Servicer for disposition as a Collection in the
manner contemplated in Article V hereof;
(n) any warranty or products liability claim allegedly arising
out of or in connection with merchandise or services which are the subject of,
or were financed with the proceeds of, any Contract under which any of the
Purchased Receivables arise, or any use or misuse by any Person of any
Financed Vehicle (including, without limitation, any use involving the
handling or disposition of any hazardous substance or waste material);
(o) any investigation, litigation or proceeding related to this
Agreement or the use of proceeds of the Purchase or the ownership of an
interest or in respect of any Purchased Receivable or Related Security;
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<PAGE>
(p) any action taken by the Seller or the Servicer (if other
than the Administrative Agent or the Purchaser) or any of their Affiliates in
the enforcement or collection of any Purchased Receivable; or
(q) the inability of the Administrative Agent or the Purchaser
to obtain any judgment in or utilize the courts of any jurisdiction in which
an Obligor may be located, which inability is caused by the Seller's, CFC's or
any Dealer's failure to qualify to do business in such jurisdiction or to file
a notice of business activities report or similar report in such jurisdiction.
If and to the extent that the foregoing undertaking may be unenforceable for
any reason, the Seller hereby agrees to make the maximum contribution to the
payment of the amounts indemnified against in this Section which is
permissible under applicable law.
SECTION 9.2 Indemnification Due to Failure to Consummate
Purchase. The Seller will indemnify the Purchaser on demand and hold it
harmless against all costs (including, without limitation, breakage costs) and
expenses resulting from any failure by the Seller to consummate the Purchase
after the Purchaser has accepted an offer from the Seller to make such
Purchase.
SECTION 9.3. Increased Costs under Liquidity Facilities and
Credit Facilities. (a) If the Purchaser becomes obligated to compensate the
lenders under any of its Liquidity Facilities or Credit Facilities (any such
lender being an "Increased Costs Lender") for a reduction in the rate of
return on their capital due to a change in law or regulation (which law or
regulation is generally applicable to the banking or other applicable industry
in the country of origin of the applicable Increased Costs Lender or in the
country in which such Increased Costs Lender operates), as more specifically
provided in the documents relating to such Facilities, then the Seller shall,
within 30 days following the Purchaser's request therefor, reimburse the
Purchaser for the amount of any such compensation, provided, that such
reimbursement (i) shall be made solely out of excess Collections of Purchased
Receivables and (ii) shall not exceed one percent (1.0%) per annum of the
average daily Investment.
(b) The Purchaser agrees that if compensation under Section
9.3(a) is sought by any lender under any of the Purchaser's Liquidity
Facilities or Credit Facilities, the Purchaser will request that such
Increased Costs Lender use its reasonable efforts to reduce or eliminate any
such claim for
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compensation and, if such claim for compensation is not reduced or eliminated
within 15 days of the Purchaser's request, the Purchaser will notify the
Seller that it is obligated (or will, after the passage of time, become
obligated) to pay the compensation described in Section 9.3(a), provided,
that, for a period of 15 days after the date of such notice (a "Remarketing
Period"), the Administrative Agent (on behalf of the Purchaser) shall use
reasonable commercial efforts to sell or otherwise dispose of the Purchased
Receivables in transactions exempt from registration under the Securities Act
of 1933 (a "Remarketing") to a Person that would not be subject to the
increased costs for which compensation is then being sought under Section
9.3(a). Any such Remarketing shall occur within 15 days after the end of the
applicable Remarketing Period (or such other period that shall be acceptable
to the Seller) and shall be for a price equal to the sum of the outstanding
Investment, all accrued and unpaid Carrying Costs and all other amounts then
due and owing by the Seller or the Servicer under this Agreement and the other
Sale Documents as of the date such sale or other disposition is closed
(including any accrued and unpaid increased costs under Section 9.3(a)). If no
offer is received during the Remarketing Period, or if the sale or other
disposition relating to an offer is not completed within 15 days (or such
other period acceptable to the Seller), then the Administrative Agent (on
behalf of the Purchaser) shall offer to sell the Purchased Receivables to the
Seller for a price equal to the sum of the outstanding Investment, all accrued
and unpaid Carrying Costs and all other amounts then due and owing by the
Seller or the Servicer under this Agreement and the other Sale Documents as of
the date such sale is closed (including any accrued and unpaid increased costs
under Section 9.3(a)), provided, that the Seller shall have no obligation to
accept such offer, but if such offer is accepted, then the Seller shall have
15 days to close such sale.
(c) The Purchaser further agrees that it will not seek
reimbursement from the Seller for any claim for compensation under Section
9.3(a) unless the Purchaser is as a general policy seeking such reimbursement
from other sellers which are participating in receivables purchase facilities
with the Purchaser, provided, that the Purchaser shall not be precluded from
waiving the reimbursement of such compensation from any such other seller.
SECTION 9.4. Notices. The Purchaser agrees to notify the Seller
upon its knowledge of a claim for which it intends to seek indemnification
under Section 9.1 or reimbursement under Section 9.3 from the Seller. The
Seller agrees to assist the parties indemnified under Section 9.1, to the
extent requested by them, in any action, suit or proceeding brought by or
against them in connection with the indemnification granted herein.
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ARTICLE X: ADMINISTRATIVE AGENT
SECTION 10.1. Appointment of Administrative Agent. The
Purchaser has appointed Canadian Imperial Bank of Commerce as its
Administrative Agent. The Administrative Agent is responsible for
administering and enforcing this Agreement and fulfilling all other duties
expressly assigned to it in this Agreement. The Purchaser has granted the
Administrative Agent the authority to take all actions necessary to assure the
Seller's compliance with the terms of this Agreement and to take all actions
required or permitted to be performed by the Purchaser under this Agreement.
SECTION 10.1.1. Replacement of Administrative Agent. The
Purchaser may, at any time in its discretion, remove a Administrative Agent
and appoint a new Administrative Agent, which shall have the duties described
in Section 10.1.
ARTICLE XI: MISCELLANEOUS
SECTION 11.1. Amendments, Etc. No amendment or waiver of, or
consent to the Seller's or the Servicer's departure from, any provision of
this Agreement shall be effective unless it is in writing and signed by the
parties hereto and then such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given.
SECTION 11.2. Notices, Etc. All notices and other
communications provided for hereunder shall, unless otherwise stated herein,
be in writing (including telecopier, telegraphic, telex or cable
communication) and sent, as to each party hereto, at its address set forth
under its name on the signature pages hereto, or at such other address as
shall be designated by such party in a written notice to the other parties
hereto. All such notices and communications shall be effective when sent.
SECTION 11.3. Payments Net of Taxes. All payments by the Seller
payable under this Agreement shall be made free and clear of, and without
deduction for, any present or future income, stamp or other taxes, fees,
duties, withholdings or other charges imposed by any taxing authority as a
result of any change in law or regulation after the Purchase Date. If, after
the Purchase Date, any law or regulation of any governmental authority
requires that the Seller or the Servicer make any
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<PAGE>
withholding or deduction from any payment by the Seller or the Servicer, then
the Seller or the Servicer, as applicable, will:
(a) pay to the relevant authority the full amount required to
be withheld or deducted;
(b) promptly forward to the Purchaser an official receipt or
other satisfactory documentation evidencing such payment to such authority;
and
(c) pay to the Purchaser any additional amounts necessary to
ensure that the net amount actually received by the Purchaser will equal the
full amount it would have received had no such withholding or deduction been
required.
SECTION 11.4. No Waiver; Remedies. No failure on the part of
the Purchaser to exercise, and no delay in exercising, any right hereunder or
under any Sale Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 11.5. Binding Effect; Assignability. (a) This Agreement
shall be binding upon and inure to the benefit of the Seller, the Servicer,
the Purchaser, the Administrative Agent and their respective successors and
assigns, except that the Seller shall not have the right to assign any
interest herein without the prior written consent of the Purchaser. The
Purchaser may assign any of its rights or obligations hereunder to any Person;
provided that in the case of any such assignment proposed to be made prior to
the occurrence of a Servicer Default, the consent of the Seller (which consent
shall not be unreasonably withheld) shall be required.
(b) This Agreement shall create and constitute the continuing
obligation of the parties hereto in accordance with its terms, and shall
remain in full force and effect until such time as the Investment is reduced
to zero and all other amounts due to the Purchaser hereunder have been paid in
full; provided, however, that rights and remedies of the Purchaser under
Article IX and the provisions of Section 11.11 shall survive any termination
of this Agreement.
SECTION 11.6. Governing Law. This Agreement and the Sale
Documents shall be governed by, and construed in accordance with, the laws of
the State of New York.
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SECTION 11.7. Construction of the Agreement. The parties hereto
intend that the conveyance of the interest in the Purchased Receivables by the
Seller to the Purchaser shall be treated as sales for purposes of generally
accepted accounting principles. If, despite such intention, a determination is
made that such transactions shall not be treated as sales, then this Agreement
shall be interpreted to constitute a security agreement and the transactions
effected hereby shall be deemed to constitute a secured financing by the
Purchaser to the Seller under applicable law. For such purpose, the Seller
hereby grants to the Purchaser a continuing security interest in the Purchased
Receivables and the Related Security and Collections related thereto to secure
the obligations of the Seller to the Purchaser hereunder.
SECTION 11.8. No Proceedings. The Seller, the Administrative
Agent and the Servicer each hereby agrees that it will not institute against
the Purchaser any bankruptcy, reorganization, insolvency or similar proceeding
until the date which is one hundred twenty-three days since the last day on
which any commercial paper notes or medium term notes issued by the Purchaser
shall have matured.
SECTION 11.9. Confidentiality. The Purchaser agrees to maintain
the confidentiality of any information regarding the Seller obtained in
accordance with the terms of this Agreement which is not publicly available,
but the Purchaser may, with notice to the Seller, reveal such information (a)
to applicable rating agencies, liquidity providers and credit providers, (b)
as necessary or appropriate in connection with the administration or
enforcement of this Agreement or its funding of the Purchase under this
Agreement, (c) as required by law, government regulation, court proceeding or
subpoena or (d) to bank regulatory agencies and examiners.
SECTION 11.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same agreement.
SECTION 11.11. Submission to Jurisdiction.The Seller and the
Servicer hereby submit to the nonexclusive jurisdiction of the Courts of the
State of New York and of any Federal Court located in such State in any action
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. Each of the Seller and the Servicer irrevocably waives
any objection which it may have to the laying of venue of any
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such proceeding and any claim that any such proceeding has been brought in an
inconvenient forum.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be signed by their duly authorized officers as of the date set forth on the
cover page of this Agreement.
PREMIER RECEIVABLES L.L.C.
as Seller
By:/s/ D.H. Olsen
-----------------
Title: Assistant Treasurer of Premier
Auto Receivables Company,
a Member of the Seller
Address: 27777 Franklin Road
Southfield, Michigan 48034
Attention: Assistant Secretary
Facsimile: 810-948-3138
CHRYSLER FINANCIAL CORPORATION
as Servicer
By:/s/ D.H. Olsen
----------------------------
Title:Assistant Treasurer
Address: 27777 Franklin Road
Southfield, Michigan 48034
Attention: Assistant Secretary
Facsimile: 810-948-3138
ASSET SECURITIZATION COOPERATIVE
CORPORATION,
as Purchaser
By:/s/ James C. Carson
-------------------
President
Address:
c/o Canadian Imperial Bank
of Commerce
425 Lexington Avenue
New York, New York 10017
Attention: President
Facsimile: (212) 856-3643
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By:/s/ Christopher C. Beaudet
------------------------
Authorized Signatory
Address:
425 Lexington Avenue
New York, New York 10017
Attention: Asset Securitization Group
Facsimile: (212) 856-3643
Exhibit 12-A
<TABLE>
<CAPTION>
CHRYSLER FINANCIAL CORPORATION AND SUBSIDIARIES
COMPUTATIONS OF RATIOS OF EARNINGS TO FIXED CHARGES
Six Months Ended
June 30,
(Unaudited)
-----------------
1996 1995
---- ----
(dollars in millions)
<S> <C> <C>
Net Earnings before cumulative effect
of changes in accounting principles $199 $155
Add back:
Taxes on income 110 81
Fixed charges 434 468
---- ----
Earnings available for fixed charges $743 $704
==== ====
Fixed charges:
Interest expense $427 $460
Rent 7 8
---- ----
Total fixed charges $434 $468
==== ====
Ratio of earnings to fixed charges 1.71 1.50
==== ====
</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)
----------------
1996 1995
---- ----
(dollars in millions)
<S> <C> <C>
Net earnings from continuing operations before
cumulative effect of a change in accounting
principle $2,042 $ 727
Add back:
Taxes on income 1,348 481
Fixed charges 700 682
Amortization of previously
capitalized interest 56 49
Deduct:
Capitalized interest 81 90
Undistributed earnings from
less than fifty-percent owned
affiliates 9 8
------ ------
Earnings available for fixed charges $4,056 $1,841
====== ======
Fixed charges:
Interest expense $ 534 $ 515
Interest expense of unconsolidated
subsidiaries -- --
Capitalized interest 81 90
Credit line commitment fees 8 4
Interest portion of rent expense 77 73
Gross up of preferred stock dividends of
majority-owned subsidiaries (CFC) to a
pretax basis -- --
------ ------
Total fixed charges $ 700 $ 682
====== ======
Ratio of earnings to fixed charges 5.79 2.70
Preferred stock dividend requirements 3 28
Ratio of earnings to fixed charges and
preferred stock dividend requirements 5.77 2.59
Equity taken up in earnings of less than
fifty-percent owned affiliates $ 9 $ 8
Deduct: Dividends paid by affiliates -- --
------ ------
Undistributed earnings from
less than fifty-percent owned affiliates $ 9 $ 8
====== ======
</TABLE>
The ratio of earnings to fixed charges is computed by dividing earnings
available for fixed charges by total fixed changes. The ratio of earnings to
fixed charges and preferred stock dividend requirements is computed by
dividing earnings available for fixed charges by the sum of total fixed
charges and preferred stock dividend requirements.
[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, 1996 and 1995, and the related consolidated
statements of net earnings and cash flows for the three-months and six-months
ended June 30, 1996 and 1995. 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, 1995, 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 18, 1996, 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, 1995 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 9, 1996
_______________
Deloitte Touche
Tohmatsu
International
_______________
[Letterhead of Deloitte & Touche LLP]
Deloitte &
Touche LLP
____________ _________________________________________
Suite 900 Telephone (313) 396-3000
600 Renaissance Center
Detroit, Michigan 48243-1704
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 consolidated subsidiaries for the periods ended June
30, 1996 and 1995, as indicated in our report dated July 9, 1996; 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
Quarterly Report on Form 10-Q for the six months ended June 30, 1996, is
incorporated by reference in Registration Statement Nos. 33-55787 and 33-64179
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
July 12, 1996
_______________
Deloitte Touche
Tohmatsu
International
_______________
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM CHRYSLER FINANCIAL CORPORATION AND
SUBSIDIARIES FINANCIAL STATEMENTS FOR THE SIX-MONTHS
ENDED JUNE 30, 1996 AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> JUN-30-1996
<CASH> $ 249
<SECURITIES> 911
<RECEIVABLES> 13,650
<ALLOWANCES> 217
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 1,320
<DEPRECIATION> 273
<TOTAL-ASSETS> 16,763
<CURRENT-LIABILITIES> 1,349
<BONDS> 10,594
0
0
<COMMON> 25
<OTHER-SE> 3,283
<TOTAL-LIABILITY-AND-EQUITY> 16,763
<SALES> 0
<TOTAL-REVENUES> 1,236
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 345
<LOSS-PROVISION> 155
<INTEREST-EXPENSE> 427
<INCOME-PRETAX> 309
<INCOME-TAX> 110
<INCOME-CONTINUING> 199
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 199
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
