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RECEIVABLES SALE AGREEMENT
among
PREMIER RECEIVABLES L.L.C.
as Seller,
CHRYSLER FINANCIAL CORPORATION
as Servicer,
WINDMILL FUNDING CORPORATION
as Purchaser
and
ABN AMRO BANK N.V.
as Administrative Agent
Dated as of September 24, 1998
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This document, in part and in whole, is confidential and proprietary. Any
duplication, dissemination, or use of any portion of this document without
the express written consent of Chrysler Financial Corporation is strictly
prohibited.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS......................................1
ARTICLE II THE SALE AND PURCHASE...........................10
Section 2.1. Sale and Purchase...........................10
Section 2.2. Purchase Price..............................10
Section 2.3. CFC's Optional Termination..................10
ARTICLE III FEES AND EXPENSES...............................11
Section 3.1. Determination of Carrying Costs.............11
Section 3.1.1. Purchase Discount...........................11
Section 3.1.2. Program Fee.................................12
Section 3.1.3. Servicer Fee................................12
Section 3.2. Interest on Unpaid Amounts..................12
ARTICLE IV CONDITIONS PRECEDENT TO PURCHASE................13
Section 4.1. Conditions Precedent to Purchase............13
Section 4.1.1. Absence of Liens............................13
Section 4.1.2. Financing Statements........................13
Section 4.1.3. Schedule of Contracts.......................13
Section 4.1.4. Seller Resolutions..........................13
Section 4.1.5. Servicer Resolutions........................13
Section 4.1.6. Legal Opinion of Counsel to the Seller
and the Servicer............................14
Section 4.1.7. Good Standing Certificates..................14
Section 4.1.8. Representations and Covenants...............14
Section 4.1.9. Other Documents.............................14
Section 4.1.10. Upfront Fee.................................14
ARTICLE V SETTLEMENT PROCEDURES...........................15
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Section 5.1. Collections.................................15
Section 5.2. Application of Collections..................15
Section 5.3. Application of Collections on Settlement
Dates.......................................15
Section 5.4. Servicer Report.............................15
Section 5.5. Purchase by Servicer Upon Breach............15
ARTICLE VI SERVICING OF RECEIVABLES........................16
Section 6.1. Appointment and Duties of Servicer..........16
Section 6.2. Replacement of Servicer.....................16
Section 6.3. Custody of Receivable Files.................18
Section 6.4. Duties of Servicer as Custodian.............18
Section 6.5. Effective Period and Termination............18
ARTICLE VII REPRESENTATIONS AND WARRANTIES..................19
Section 7.1. Representations and Warranties of the
Seller and the Servicer.....................19
ARTICLE VIII COVENANTS.......................................20
Section 8.1. Affirmative Covenants of the Seller
and the Servicer............................20
Section 8.2 Reporting Requirements of the Servicer......21
Section 8.3. Negative Covenants of the Seller
and the Servicer............................21
Section 8.4. Protection of the Purchaser's Interest......22
Section 8.5. Servicer Indemnities........................22
ARTICLE IX ADMINISTRATIVE AGENT............................22
Section 9.1. Appointment of Administrative Agent.........22
Section 9.1.1. Replacement of Administrative Agent.........23
ARTICLE X MISCELLANEOUS...................................23
Section 10.1. Amendments, Etc.............................23
Section 10.2. Notices, Etc................................23
Section 10.3. No Waiver; Remedies.........................23
Section 10.4. Binding Effect; Assignability...............23
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Section 10.5. Governing Law...............................24
Section 10.6. Construction of the Agreement...............24
Section 10.7. Agreement Not To Petition...................24
Section 10.8. Excess Funds................................24
Section 10.9. Confidentiality.............................25
Section 10.10. Execution in Counterparts...................25
EXHIBITS
EXHIBIT A -- Form of Servicer Report
EXHIBIT B -- Form of Opinion of Counsel
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RECEIVABLES SALE AGREEMENT dated as of September 24, 1998 among
PREMIER RECEIVABLES L.L.C., a Michigan limited liability company, as the
"Seller", CHRYSLER FINANCIAL CORPORATION, a Michigan corporation, as the
initial "Servicer", WINDMILL FUNDING CORPORATION, as the "Purchaser" and ABN
AMRO BANK N.V., as the "Administrative Agent" for the Purchaser.
ARTICLE I
DEFINITIONS
"Administrative Agent" means ABN AMRO BANK N.V. and any replacement
thereof under Section 9.1.1.
"Adverse Claim" means any mortgage, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(consensual, statutory or other), charge, security arrangement, or any other
encumbrance or other right or claim in, of or on any Person's assets or
properties in favor of any other Person, of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic
effect as any of the foregoing).
"Agreement" means this Receivables Sale Agreement, as it may be
amended from time to time.
"Aggregate Principal Balance" means, at any time, the aggregate
Principal Balance of all Purchased Receivables at such time.
"Amount Financed" means (i) with respect to any Receivable that is
not a Balloon Payment Receivable, the amount advanced under such Receivable
toward the purchase price of the Financed Vehicle and any related costs,
exclusive of any amount allocable to the premium of force-placed physical
damage insurance covering the Financed Vehicle; and (ii) with respect to a
Balloon Payment Receivable, an amount equal to the present value of the fixed
level payment monthly installments (not including the amount designated as
the Balloon Payment) under the Balloon Payment Receivable, assuming that each
payment is made on the due date in the month in which such payment is due,
discounted at the APR for such Balloon Payment Receivable.
"Annual Percentage Rate" or "APR" of a Receivable means the annual
rate of finance charges stated in the related Contract.
"Balloon Payment" means, for any Receivable, the dollar amount of
any payment which is not a level monthly payment (other than the first or
last payment made on the Receivable which is minimally different from the
other level payments).
"Balloon Payment Receivable" means any Contract listed on the
Schedule of Contracts that provides for amortization of the loan over a
series of fixed level payment monthly installments in accordance with the
actuarial method, the simple interest method or the Rule of 78s, but also
requires a final payment that is greater than the scheduled monthly payments
and is due after payment of such scheduled monthly payments and that may be
made by (i) payment in full in cash of a Balloon Payment, (ii) return of the
Financed Vehicle to the Servicer provided certain conditions are satisfied or
(iii) refinancing the Balloon Payment in accordance with certain conditions.
"Business Day" means any day other than (i) Saturday, Sunday, (ii) a
day on which banks are authorized or required to be closed in New York City
or Chicago, Illinois, or (iii) a day which is a holiday on the Federal
Reserve calendar.
"Carrying Costs" means, for each Settlement Period, an amount equal
to the sum of (i) the Purchase Discount, as defined in Section 3.1.1, (ii)
the Program Fee, as defined in Section 3.1.2, and (iii) the Servicer Fee, if
any, as defined in Section 3.1.3, for such Settlement Period.
"Carrying Costs True-up Amount" has the meaning assigned to that
term in Section 3.1.1.
"Certificate of Title" means any certificate, instrument or other
document issued by a state or other governmental authority in respect of any
motor vehicle for the purpose of evidencing the ownership of, or any Adverse
Claim in or against, such motor vehicle.
"CFC" means Chrysler Financial Corporation, a Michigan corporation,
or any legal successor thereto.
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"Closing Date" means September 24, 1998.
"Collection" means any amount paid by an Obligor or any other party
with respect to a Purchased Receivable, including Liquidation Proceeds.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices, or other writings pursuant to which such
Receivable arises or which evidence such Receivable.
"Credit and Collection Policy" means the credit and collection
policies and practices of the Servicer and any successor Servicer relating to
Receivables and Contracts, such policies being subject to unilateral revision
or modification at any time by the Servicer or successor Servicer.
"Credit Facilities" means each of the committed loan facilities,
lines of credit, letters of credit and other forms of credit enhancement
available to the Purchaser which are not Liquidity Facilities.
"Credit Facility Spread" means the per annum spread rate specified
as such in the Fee Letter.
"Cut-Off Date" means September 21, 1998.
"Dealer" means an automobile or light-duty truck dealership located
within the United States at or through which a Financed Vehicle shall have
been purchased or is proposed to be purchased.
"Delinquency Ratio" means, as of the last calendar day of any month,
a fraction, expressed as a percentage, the numerator of which is the sum of
the Principal Balances of all Receivables which were Delinquent Receivables
as of the last calendar day of such month and the last calendar day of each
of the two immediately preceding months, to the extent such preceding months
exist, and the denominator of which is the sum of the Aggregate Principal
Balance on such last calendar day of such month and on the last calendar day
of each of the two immediately preceding months, to the extent such preceding
months exist.
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"Delinquent Receivable" means any Receivable which has 10% or more
of a scheduled payment past due for more than 60 days.
"Eligible Receivable" means, as of the Cut-Off Date, any Receivable:
(i) the Obligor of which (a) is a resident of the United
States and (b) is not an affiliate of the originating Dealer or any
of the parties hereto,
(ii) the Obligor of which (a) is not the Obligor of any
Receivable which has 10% or more of a scheduled payment past due for
more than 60 days and (b) is not the subject of any bankruptcy,
insolvency or reorganization proceeding or any other proceeding
seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or any
substantial part of its property,
(iii) which is "chattel paper" within the meaning of Section
9-105 of the UCC of all applicable jurisdictions,
(iv) which is denominated and payable only in United States
dollars in the United States,
(v) which (a) has been originated in the United States by
a Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer's business and (b) satisfies all applicable
requirements of the Credit and Collection Policy,
(vi) which arises under a Contract (a) which, together with
such Receivable, is (1) in full force and effect and constitutes the
legal, valid and binding obligation of the related Obligor,
enforceable against such Obligor in accordance with its terms, and
(2) subject to no dispute, offset, counterclaim or other defense,
and (b) with respect to which (1) no default, breach, violation, or
event permitting acceleration under the terms thereof has occurred
and (2) there has not arisen any condition that, with notice or
lapse of time or both, would constitute a default, breach, violation
or event permitting acceleration under the terms thereof,
(vii) which, together with the related Contract, (a) is
secured by a perfected, valid, subsisting and enforceable first
priority security interest in favor of CFC in the
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related Financed Vehicle, (b) contains customary and enforceable
provisions such that the rights and remedies of the holder of such
security interest are adequate for realization against the
collateral of the benefits of the security, and (c) was originated
and transferred to the Seller without any conduct constituting fraud
or misrepresentation on the part of the applicable Dealer, CFC or
the Seller,
(viii) which, together with the related Contract, immediately
following the execution of such Contract, was purchased by (and the
originating Dealer has validly assigned all of its right, title and
interest therein to) CFC, which, in turn, has sold such Receivable
to the Seller, and such purchase and assignment of such Receivable,
such Contract and the Related Security to CFC is expressly
contemplated in such Contract,
(ix) which, together with the Contract related thereto,
does not contravene any laws, rules or regulations applicable
thereto (including, without limitation, laws, rules and regulations
relating to usury, truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection
practices and privacy) and with respect to which no part of the
Contract related thereto is in violation of any such law, rule or
regulation,
(x) the Financed Vehicle securing which (a) is free and
clear of any Adverse Claim other than the security interest therein
then being assigned by the Seller to the Administrative Agent for
the benefit of the Purchaser, and no enforcement action, whether by
repossession or otherwise, has been taken with respect to such
Financed Vehicle, and (b) is covered by the Required Insurance in
respect of such Financed Vehicle, and such Required Insurance is in
full force and effect, and the proceeds of the Required Insurance
has been assigned to the Seller and such proceeds are fully
assignable to the Administrative Agent, for the benefit of the
Purchaser,
(xi) as to which the Administrative Agent has not notified
the Seller that such Receivable or class of Receivables is not
acceptable as an Eligible Receivable, including, without limitation,
because such Receivable arises under a Contract that is not
acceptable,
(xii) with respect to the outstanding balance thereof, (a)
the related Contract requires that payment in full of such
outstanding balance is scheduled to be made (1)
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not earlier than 5 months after, and (2) not later than 60 months
after the date any interest therein is purportedly transferred to
the Purchaser hereunder and (b) such Outstanding Balance is
scheduled to be paid in equal consecutive monthly installments,
unless such Receivable is a Balloon Payment Receivable, and
(xiii) which Receivable bears interest at the per annum rate
stated on the face of the related Contract, which per annum rate
remains fixed during the term of such Receivable and accrued
interest on such Receivable is payable monthly, in arrears.
"Fee Agreement" means the letter agreement dated the date hereof
among the Administrative Agent, the Purchaser and the Seller concerning fees
and certain other amounts to be paid in connection with this Agreement.
"Finance Charges" means, with respect to any Receivable and its
related Contract, any finance, interest or similar charges owing by an
Obligor pursuant to such Contract, including, without limitation, any charge
payable in connection with any extension or adjustment under such Contract
(without regard to whether any such extension or adjustment is permitted
under the terms of this Agreement).
"Financed Vehicle" means an automobile or light-duty truck, together
with all accessions thereto, securing an Obligor's indebtedness under the
applicable Contract.
"Full Payoff" has the meaning assigned to that term in Section 5.2.
"Hedging Proceeds" means any amount payable by CFC to the
Administrative Agent under a swap confirmation.
"Insolvency Event" means, with respect to a specified Person, (a)
the filing of a decree or order for relief by a court having jurisdiction in
the premises in respect of such Person or any substantial part of its
property in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its
property, or ordering the winding-up or liquidation of such Person's affairs,
and such decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or (b) the commencement by such Person of a voluntary
case under any
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applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by such Person to the entry of an
order for relief in an involuntary case under any such law, or the consent by
such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
for such Person or for any substantial part of its property, or the making by
such Person of any general assignment for the benefit of creditors, or the
failure by such Person generally to pay its debts as such debts become due,
or the taking of action by such Person in furtherance of any of the
foregoing.
"Insurance Policy" means (i) any comprehensive and collision, fire,
theft or other insurance policy maintained by an Obligor in which the
Servicer is named as loss payee with respect to one or more Financed
Vehicles, and (ii) any credit, life or disability insurance maintained by an
Obligor in connection with any Contract.
"Investment" means the aggregate amount of cash paid by the
Purchaser to the Seller for each Purchase, less the amount of all Collections
received and applied as reductions of Investment pursuant to Article V.
"Late Payment Penalty Rate" means the rate per annum penalty rate
specified as such in the Fee Letter.
"Liquidated Receivable" means any Receivable liquidated by the
Servicer through the sale of a Financed Vehicle or otherwise.
"Liquidity Facilities" means each of the committed loan facilities,
lines of credit and other financial accommodations available to the Purchaser
to support the liquidity of the Purchaser's commercial paper notes and medium
term notes.
"Liquidity Facility Spread" means the per annum spread rate
specified as such in the Fee Letter.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the monies collected in respect thereof, from whatever source,
net of the sum of any amounts expended by the Servicer in connection with
such liquidation and any amounts required by law to be remitted to the
Obligor on such Liquidated Receivable.
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"Net Loss" for a month means the sum of the Aggregate Principal
Balance of all Purchased Receivables which are deemed to be uncollectible for
such month, minus any Liquidation Proceeds received during such month, plus
any losses resulting from disposition expenses paid during such month.
"Net Loss Ratio" means, as of the last day of any month, a fraction,
expressed as a percentage, the numerator of which is the product of (i) the
sum of the Net Loss for such month and the two immediately preceding months,
to the extent such months exist, and (ii) a factor of 12 divided by the
number of months included in the sum in clause (i), and the denominator of
which is the average of the Aggregate Principal Balance on the first day of
the month and the first day of the two immediately preceding months, to the
extent such months exist.
"Obligor" means any Person which is obligated to make payment on a
Receivable.
"Percentage Interest" means, as of any date, a fraction obtained by
dividing (a) the cash portion of the purchase price paid for the Receivables
pursuant to Section 2.2 hereof on or prior to such date, by (b) $750,000,000.
"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 Balloon
Payment Receivable, the Principal Balance shall not include the Balloon
Payment.
"Program Fee" means the fee specified as such in the Fee Agreement,
which shall include all annual expenses, including but not limited to legal
fees, audit fees, filing and administrative fees, and liquidity and credit
enhancement fees.
"Purchase" has the meaning assigned to that term in Section 2.1.
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"Purchase Amount" means the amount, as of the close of business on
the last day of a Settlement Period, required to prepay in full a Receivable
under the terms thereof including interest to the end of the month of
purchase.
"Purchase Date" means each of September 24, 1998 and September 25,
1998, the dates on which the conditions precedent to a Purchase described in
Section 4.1 have been satisfied or waived.
"Purchase Discount" has the meaning assigned to that term in Section
3.1.1.
"Purchased Receivable" means a Receivable arising under a Contract
listed as an Eligible Receivable on the Schedule of Contracts delivered to
the Administrative Agent prior to the Closing Date being sold to the
Purchaser under this Agreement.
"Purchaser" means Windmill Funding Corporation and its successors
and assigns, including without limitation ABN AMRO Bank N.V., as provider of
the Credit and Liquidity Facilities.
"Receivable" means the indebtedness and other obligations of an
Obligor arising under a Contract, whether such indebtedness or other
obligations constitute accounts, chattel paper, instruments or general
intangibles, and including, without limitation, the obligation to pay any
Finance Charges with respect thereto.
"Receivables Files" means the documents specified in Section 6.3.
"Related Security" means, with respect to any Receivable:
(i) all of the Seller's interest in the Financed Vehicle,
the financing of the purchase of which gave rise to such Receivable,
including, without limitation, all of the Seller's right, title and
interest in and to the proceeds of the Insurance Policies, and all
warranties, indemnities, service obligations and other contract
rights issued or granted by, or otherwise existing under applicable
law against, the manufacturer or Dealer in respect of such Financed
Vehicle,
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(ii) all other security interests or liens and property
subject thereto from time to time, if any, purporting to secure
payment of such Receivable, whether pursuant to the Contract related
to such Receivable, or otherwise, together with all financing
statements signed by an Obligor describing any collateral securing
such Receivable, and including, without limitation, all security
interests or liens, and property subject thereto, granted by any
Person (whether or not the primary Obligor on such Receivable) under
or in connection therewith,
(iii) all books, records and other information relating to
such Receivable, including, without limitation, all Contracts,
(iv) all service contracts and other contracts and
agreements relating to such Receivable, and
(v) all proceeds of any of the foregoing.
"Required Insurance" means an Insurance Policy with respect to a
Financed Vehicle (i) that has been issued to the Obligor by an insurance
company acceptable to the Servicer, (ii) that provides comprehensive
collision, fire, theft and other physical damage coverage, (iii) that is in
an amount not less than the market value of the applicable Financed Vehicle,
and (iv) that has the Servicer noted as the loss payee thereon.
"Reserve" means an amount equal to the product of (a) the Percentage
Interest, (b) the Reserve Percentage and (c) the maximum Investment permitted
pursuant to Section 2.2.
"Reserve Percentage" means the percentage rate specified as such in
the Fee Letter.
"Sale Documents" means this Agreement, the Fee Agreement, the
Exhibits hereto to which the Seller is a party and all other certificates,
instruments, agreements and documents executed from time to time by the
Seller in connection with the transactions contemplated in this Agreement.
"Schedule of Contracts" means the list of Contracts delivered to the
Administrative Agent, such list being in microfiche, paper or electronic
format.
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"Seller" means Premier Receivables L.L.C., a Michigan limited
liability company, and its successors and permitted assigns.
"Servicer" means CFC or any replacement thereof under Article VI.
"Servicer Default" has the meaning assigned to that term in Section
6.2.
"Servicer Fee" has the meaning assigned to the term in Section
3.1.2.
"Servicer Report" means the report in the form of Exhibit A hereto
to be provided by the Servicer in accordance with Section 5.4 of this
Agreement, which report shall include a calculation of the Delinquency Ratio
and the Net Loss Ratio for the applicable month.
"Settlement Date" means the 20th day of each month following a
related Settlement Period (or if such 20th day is not a Business Day, the
next succeeding Business Day).
"Settlement Period" means a calendar month, provided, that, for
purposes of the initial Settlement Period, such period shall commence as of
the Cut-Off Date and end on September 30, 1998.
"Simple Interest Method" means the method of allocating a fixed
level payment to principal and interest, pursuant to which the portion of
such payment that is allocated to interest is equal to the product of (a) the
fixed rate of interest, (b) the unpaid principal balance, and (c) a fraction,
the numerator of which is the number of days elapsed since the preceding
payment of interest was made and the denominator of which is 365, and the
remainder of such payment is allocable to principal.
"Upfront Fee" has the meaning assigned to that term in Section
4.1.10.
ARTICLE II
THE SALE AND PURCHASE
Section 2.1. Sale and Purchase. Upon the terms and subject to
the conditions set forth herein, effective as of each Purchase Date, (i) the
Seller hereby sells, transfers and assigns
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to the Purchaser the Percentage Interest in all of the Seller's right, title
and interest to and in the Purchased Receivables, together with the Related
Security and Collections from and after the Cut-Off Date relating to such
Purchased Receivables and (ii) the Purchaser hereby purchases and accepts the
transfer and assignment of the Percentage Interest in all of the Seller's
right, title and interest to and in the Purchased Receivables sold,
transferred and assigned on such Purchase Date, together with the Related
Security and Collections relating to such Purchased Receivables (the
foregoing sales, transfers and assignments 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 each Purchase Date, without recourse, representation
or warranty of any kind, all right, title and interest of the Purchaser in
and to the applicable portion of Balloon Payments, all monies due and to
become due and all amounts received with respect thereto and all proceeds
thereof. Notwithstanding anything herein to the contrary, the Purchaser shall
have no obligation to make any Purchase hereunder.
Section 2.2. Purchase Price. The purchase price payable by the
Purchaser for each Purchase shall equal the Percentage Interest of the
Aggregate Principal Balance of the Purchased Receivables 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 each Purchase Date and shall equal (a)
$400,000,000, on September 24, 1998, and (b) $350,000,000, on September 25,
1998. Upon and after the reduction of the Investment to zero and the payment
in full of all other amounts due to the Purchaser hereunder, all Collections
or other cash received by the Purchaser on account of Receivables and the
interest of the Purchaser therein and all Receivables held by or on behalf of
the Purchaser will be transmitted in the form received by the Purchaser to
the Seller. The transmission of such amount by the Purchaser shall be deemed
to satisfy the payment of the deferred payment component of the purchase
price under this Section 2.2, and the Purchaser shall have no other
obligation to pay such deferred payment component. The maximum amount of
Investment hereunder shall not exceed $750,000,000.
Section 2.3. CFC's Optional Termination. CFC shall have the
right, on five (5) Business Days' written notice to the Administrative Agent,
at any time following the reduction of the Aggregate Principal Balance
hereunder to a level that is less than ten percent (10%) of the Aggregate
Principal Balance on the Closing Date, to repurchase from the Purchaser all,
and not part, of the then outstanding Purchased Receivables, together with
the Related Security and
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Collections relating to such Purchased Receivables. The purchase price in
respect thereof shall be an amount equal to the Investment outstanding at
such time plus all other amounts, including Purchase Discount and Program
Fees, payable (whether due or accrued) hereunder or under any other Sale
Document to the Purchaser or the Administrative Agent at such time. Such
repurchase shall be without representation, warranty or recourse of any kind
by, on the part of or against the Purchaser or the Administrative Agent.
ARTICLE III
FEES AND EXPENSES
Section 3.1. Determination of Carrying Costs. The following
amounts 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. The Purchase Discount in
respect of a Settlement Period shall equal the amount of interest or discount
incurred by the Purchaser to finance the Investment during such Settlement
Period, which amount is to be determined on a pro-rata basis as the product
of (i) the total interest or discount incurred by the Purchaser to finance
all investments owned by it during the related Settlement Period, and (ii)
the quotient of (x) the weighted average Investment outstanding under this
Agreement during such Settlement Period, and (y) the weighted average of all
of the Purchaser's investments outstanding during such Settlement Period;
provided that to the extent that the Investment referred to herein is funded
by specific issues of commercial paper notes and/or by specific borrowings
under a Liquidity Facility or a Credit Facility under which the Purchaser has
borrowed loans during the related Settlement Period (which Liquidity Facility
or Credit Facility 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), the
Purchase Discount shall equal the interest or discount applicable to such
issuance or borrowing during the related Settlement Period, provided,
further, that, for purposes of the foregoing, the interest rates applicable
to the Liquidity and Credit Facilities shall be a rate per annum equal to the
sum of (a) the overnight reserve adjusted "Interbank Offered Rate" quoted by
the Administrative Agent on such day (or, if such day is not a Business Day,
on the immediately preceding Business Day), for U.S. Dollar deposits with a
term of one day (or, if the following day is not a Business Day, for a term
extending to the first succeeding Business Day), as determined by the
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Administrative Agent from time to time whenever any Investment is held under
the Credit and Liquidity Facilities, and (b)(i) the Liquidity Facility
Spread, in the case of the Liquidity Facility, or (ii) the Credit Facility
Spread, in the case of the Credit Facility. At any time that any Investment
is held under the Liquidity and Credit Facilities, 96% of such Investment
shall be held under the Liquidity Facility and 4% shall be held under the
Credit Facility.
Two Business Days prior to the end of each Settlement Period (or if such day
is not a Business Day, the immediately preceding Business Day), the
Administrative Agent shall determine the Purchase Discount pursuant to (a)
above by using the actual interest or discount incurred for each day elapsed
to such point in the Settlement Period and estimating the interest or
discount for each remaining day in such Settlement Period. 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 Purchase Discount actually paid using the
estimated Purchase Discount and the Purchase Discount which would have been
paid had the actual Purchase Discount been available (such differential being
the "Carrying Costs True-up Amount"). If the amount of Carrying Costs paid
for such immediately preceding Settlement Period based upon an estimated
Purchase Discount was less than the amount of Carrying Costs for such
Settlement Period based upon the actual Purchase Discount, the amount of
Collections remitted to the Purchaser pursuant to Section 5.4 shall be
increased by an amount equal to the Carrying Costs True-up Amount, or, if the
amount of Carrying Costs paid for such immediately preceding Settlement
Period based upon an estimated Purchase Discount was greater than the amount
of Carrying Costs for such Settlement Period based upon the actual Purchase
Discount, the amount of Collections remitted to the Purchaser pursuant to
Section 5.4 shall be decreased by an amount equal to the Carrying Costs
True-up Amount.
Section 3.1.2. Program Fee. The Program Fee in respect of each
Settlement Period shall mean the fee as defined in Article I, which shall
equal the product of (i) the rate specified in the Fee Agreement, (ii) the
average Investment outstanding during such Settlement Period, and a fraction,
the numerator of which is the number of days in the Settlement Period, and
the denominator of which is 360.
Section 3.1.3. Servicer Fee. The Servicer Fee in respect of each
Collection Period, shall equal the product of the per annum Servicer Fee Rate
(assuming a 30/360 day basis) of the Principal Balance of Purchased
Receivables on the first day of such Collection Period. The
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Servicer 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 5.3; provided, however, that to the extent that
Collections during any Collection Period are insufficient to pay all Carrying
Costs for such Collection Period, the amount of the Servicer Fee payable for
such Collection Period shall be reduced by the amount of such shortfall but
in no event to an amount less than zero dollars the amount of such unpaid
Servicer Fee shall be accumulated and carried over to subsequent Collection
Periods for payment out of Collections for such Collection Period in
accordance with Section 3.1.3.
Section 3.2. Interest on Unpaid Amounts. To the extent that the
Seller or Servicer fails to pay when due to the Purchaser or the
Administrative Agent any fee, expense or other amount payable hereunder or
under any Sale Document, interest shall be due and payable on such unpaid
amount, for each day until paid in full, at a rate of interest equal to the
sum of (a) the rate of interest per annum published on such day (or, if not
then published, on the most recently preceding day) in The Wall Street
Journal as the "Prime Rate" plus (b) the Late Payment Penalty Rate. Changes
in the rate payable hereunder shall be effective on each date on which a
change in the "Prime Rate" is so published.
ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASE
Section 4.1. Conditions Precedent to Purchase. The following
conditions must be satisfied before the Purchaser will make a Purchase:
Section 4.1.1. Absence of Liens. The Seller shall certify that
all Purchased Receivables, Related Security and all proceeds thereof are free
and clear of any Adverse Claim and that all Purchased Receivables are
Eligible Receivables.
Section 4.1.2. Financing Statements. The Administrative Agent
will have received acknowledgment copies of UCC-1 financing statements, and
all other documents reasonably requested by the Administrative Agent, to
evidence the perfection of the Purchaser's interest (through the
Administrative Agent) in the Purchased Receivables, the Related Security and
the Collections.
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Section 4.1.3. Schedule of Contracts. The Administrative Agent
will have received the Schedule of Contracts.
Section 4.1.4. Seller Resolutions. The Administrative Agent will
have received a certificate of the Seller attesting to:
(a) the resolutions of the majority interest of the
Seller's members authorizing the execution by the Seller of the
Sale Documents to be executed by the Seller;
(b) the names and signatures of the officers of the
Seller's members authorized to execute the Sale Documents to be
executed by the Seller; and
(c) the completeness and correctness of the attached
articles of organization and operating agreement of the Seller.
Section 4.1.5. Servicer Resolutions. The Administrative Agent
will have received a certificate of the Servicer's Secretary or Assistant
Secretary attesting to:
(a) the resolutions of the Servicer's Board of Directors
(or an executive committee thereof) authorizing the execution by
the Servicer of the Sale Documents to be executed by the
Servicer;
(b) the names and signatures of the officers of the
Servicer authorized to execute the Sale Documents to be executed
by the Servicer; and
(c) the completeness and correctness of the attached
restated articles of incorporation and by-laws of the Servicer.
Section 4.1.6. Legal Opinion of Counsel to the Seller and the
Servicer. The Administrative Agent will have received an opinion from counsel
to the Seller and the Servicer, such counsel being "in-house" counsel unless
otherwise required by any agencies providing a credit rating to the
transaction contemplated hereby, substantially in the form attached hereto as
Exhibit C, together with such other matters as the Administrative Agent or
the Purchaser may reasonably request.
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Section 4.1.7. Good Standing Certificates. The Administrative
Agent will have received certificates of recent date issued by the Secretary
of State of the State of Michigan, as to the legal existence and good
standing of the Seller and the Servicer.
Section 4.1.8. Representations and Covenants. On and as of the
Closing Date (i) the representations and warranties of the Seller and the
Servicer in Article VII shall be true and correct with the same effect as if
made on such date and (ii) the Seller and the Servicer shall be in compliance
with the covenants set forth in Article VIII. The Seller and the Servicer, by
accepting the proceeds of such Purchase, shall be deemed to have certified as
to the truth and accuracy of each of the matters described in the foregoing
clauses (i) and (ii), both before and after giving effect to such Purchase.
Section 4.1.9. Other Documents. The Administrative Agent and the
Purchaser will have received all other documents that either of them had
reasonably requested from the Seller or the Servicer.
Section 4.1.10. Upfront Fee. The Seller shall have paid to the
Administrative Agent at Closing or at the time agreed upon in the Fee Letter
the upfront fee specified in the Fee Agreement, which shall include all
upfront expenses, including but not limited to legal fees, filing and
administrative fees, rating agency fees, and liquidity and credit enhancement
fees incurred with respect to each Purchase.
ARTICLE V
SETTLEMENT PROCEDURES
Section 5.1. Collections. The Servicer shall remit Collections
as provided below with respect to each Settlement Period to the
Administrative Agent on the Settlement Date relating to such Settlement
Period.
Section 5.2. Application of Collections. All Collections for the
Settlement Period shall be applied by the Servicer as follows:
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(a) With respect to each Purchased Receivable, payments
by or on behalf of the Obligor shall be applied to interest and
principal in accordance with the Simple Interest Method with
excess payments applied to principal.
(b) All Liquidation Proceeds with respect to any Balloon
Payment Receivable shall be applied first to the related
Receivable and only after the payment in full of the Principal
Balance thereof plus accrued but unpaid interest thereon shall
any such Liquidation Proceeds be applied to, or constitute, the
related Balloon Payment.
Section 5.3. Application of Collections on Settlement Dates. The
Servicer will, by 3:00 P.M. (New York time) on each Settlement Date, from
Collections received during the preceding Settlement Period, pay to the
Administrative Agent and the Administrative Agent shall distribute such
Collections, together with any Hedging Proceeds received by the
Administrative Agent with respect to such Settlement Period, to the Purchaser
(i) first, an amount equal to the Carrying Costs for the Settlement Period
(as such amount shall be increased or decreased by the Carrying Costs True-up
Amount, if any, for the immediately preceding Settlement Period as determined
pursuant to Section 3.1.1(b)) and (ii) second, all remaining Collections as a
reduction to Investment.
Section 5.4. Servicer Report. The Servicer will provide the
Purchaser, either in writing or electronically, with a Servicer Report with
respect to each Settlement Period no later than 15 days following the end of
such Settlement Period (or, if such 15th day is not a Business Day, the next
succeeding Business Day).
Section 5.5. Purchase by Servicer Upon Breach. The Seller, the
Servicer or the Administrative Agent, as the case may be, shall inform the
other parties to this Agreement promptly upon the discovery of any breach of
any representation or warranty made pursuant to Section 4.1.1 or Article VII
or of any agreement made in Article VIII. Unless the breach shall have been
cured by the last day of the second Settlement Period following such
discovery (or, at the Servicer's election, the last day of the first
following Settlement Period), the Servicer shall purchase any Receivable
materially and adversely affected by such breach as of such last day. If the
Servicer violates Section 8.3 or otherwise takes any action during any
Settlement Period pursuant to Section 6.1 that impairs the rights of the
Administrative Agent or the Purchaser in any Receivable, the Servicer shall
purchase such Receivable as of the last day of such Settlement Period. In
consideration of the purchase of any Receivable pursuant to either
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of the two preceding sentences, the Servicer shall remit the Purchase Amount,
and such repurchased Receivable shall be transferred to the Servicer without
recourse, representation or warranty of any kind. Subject to the provisions
of Section 8.5, the sole remedy of the Administrative Agent and the Purchaser
with respect to a breach of representations and warranties pursuant to
Section 4.1.1 or Article VII or breach of an agreement contained in Article
VIII shall be to require the Servicer to purchase Receivables pursuant to
this Section.
ARTICLE VI
SERVICING OF RECEIVABLES
Section 6.1. Appointment and Duties of Servicer. The Purchaser
and the Seller each hereby appoint CFC as the Servicer and CFC accepts such
appointment. The Servicer, for the benefit of the Purchaser (to the extent
provided herein), shall manage, service, administer, make collections and
discharge liens on the Purchased Receivables with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to all
comparable automotive receivables that it services for itself or others. If
the Servicer shall commence a legal proceeding to enforce a Purchased
Receivable, the Purchaser shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection, such Purchased Receivables to
the Servicer. If in any enforcement suit or legal proceeding it shall be held
that the Servicer may not enforce a Purchased Receivable on the ground that
it shall not be a real party in interest or a holder entitled to enforce such
Purchased Receivable, the Administrative Agent shall, at the Servicer's
expense and direction, take steps to enforce such Receivable, including
bringing suit in its name or the name of the Purchaser. The Purchaser shall
upon the written request of the Servicer furnish the Servicer with any powers
of attorney and other documents reasonably necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties hereunder.
Section 6.2. Replacement of Servicer. (a) If any of the
following events (a "Servicer Default") shall occur and be continuing:
(i) any failure by the Servicer to make any payment or
deposit required to be made hereunder and the continuance of
such failure for a period of five Business Days;
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(ii) any representation or warranty made by the Servicer
in Section 7.1, or any information set forth in a Servicer
Report or other certificate delivered to the 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, provided, however,
that the Servicer cannot be removed until a successor Servicer is selected
and appointed and such successor Servicer meets industry-wide standards for
being a Servicer of retail automotive receivables.
(b) If CFC is removed as Servicer, CFC shall transfer to any
successor Servicer designated by the Purchaser all records, correspondence
and documents (including computer software) requested by the Purchaser or
such successor Servicer and permit such Persons to have access to, and to
copy, all software used by the Servicer in the collection, administration or
monitoring of the Purchased Receivables. In the case of software that is then
licensed by, or otherwise made available to, the Servicer from or by any
third party, the Servicer shall use its best efforts to obtain such consents
and otherwise take all actions necessary in order to enable any Servicer
hereunder to succeed to all rights of CFC to the quiet use and enjoyment of
such software for the purpose of discharging the obligations of the Servicer
under or in connection with the Sale Documents.
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(c) Following the removal of CFC as Servicer, (i) the Purchaser
and the Administrative Agent may (a) notify Obligors of the ownership
interest of the Purchaser hereunder in the Purchased Receivables and the
Related Security, (b) notify each issuer of an Insurance Policy of the
ownership interest of the Purchaser hereunder in the Purchased Receivables
and in the Related Security (including the applicable Financed Vehicle and
Insurance Policy thereon), and (c) direct the Seller to, whereupon the Seller
immediately shall, note the interest of the Purchaser hereunder on each
Certificate of Title relating to each Financed Vehicle and (ii) the Purchaser
and the Administrative Agent shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and remedies
provided under the Uniform Commercial Code of the applicable jurisdiction and
other applicable laws, which rights shall be cumulative.
Section 6.3. Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Purchaser and the Seller hereby irrevocably appoint the Servicer, and the
Servicer hereby accepts such appointment, to act for the benefit of the
Purchaser and the Seller as custodian of the following documents or
instruments which are hereby or will hereby be constructively delivered to
the Administrative Agent, as pledgee of the Seller, as of the Closing Date
with respect to each Purchased Receivable (the "Receivable Files"):
(a) the fully executed original of the Contract related
to such Purchased Receivable;
(b) the original credit application fully executed by
the Obligor;
(c) the original Certificate of Title or such documents
that the Servicer or the Seller shall keep on file, in
accordance with its customary procedures, evidencing the
security interest of the Seller in the Financed Vehicle; and
(d) any and all other documents that the Servicer or the
Seller shall keep on file, in accordance with its customary
procedures, relating to a Purchased Receivable, an Obligor or a
Financed Vehicle.
Section 6.4. Duties of Servicer as Custodian. The Servicer shall
hold the Receivable Files as custodian for the benefit of the Seller and the
Purchaser and maintain such
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accurate and complete accounts, records and computer systems pertaining to
each Receivable File as shall enable the Seller and Servicer to comply with
this Agreement. In performing its duties as custodian the Servicer shall act
with reasonable care, using that degree of skill and attention that the
Servicer exercises with respect to receivable files relating to all
comparable automotive receivables that the Servicer services for itself or
others.
Section 6.5. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cut-Off Date and
shall continue in full force and effect until terminated pursuant to this
Section. If CFC shall cease to be Servicer in accordance with the provisions
of this Agreement, the appointment of such Servicer as custodian shall be
terminated by the Purchaser. The Purchaser may terminate the Servicer's
appointment as custodian at any time following the occurrence of a Servicer
Default under Section 6.2(a) upon thirty days written notification to the
Servicer. As soon as practicable after any termination of such appointment,
the Servicer shall deliver the Receivable Files to the Administrative Agent
or to a Person designated by the Administrative Agent at a place or places as
the Administrative Agent may reasonably designate.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Seller and
the Servicer. Each of the Seller and the Servicer makes, with respect to
itself, the following representations and warranties to the Purchaser:
(a) It is a limited liability company or corporation, as
applicable, duly organized or incorporated, validly existing and
in good standing under the laws of the jurisdiction of its
organization or incorporation and is duly qualified in good
standing as a foreign corporation or limited liability company
in each jurisdiction where the failure to be so qualified could
materially adversely affect its ability to perform its
obligations hereunder.
(b) The execution, delivery and performance by the
Seller and the Servicer of the Sale Documents, and the Seller's
use of the proceeds of the Purchases, are within the Seller's
and the Servicer's respective corporate or other powers, have
been duly
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authorized by all necessary corporate or other action, do not
contravene (i) the Seller's or the Servicer's respective
articles of organization or charter, as applicable, or operating
agreement or by-laws, as applicable, or (ii) law or any
contractual restriction binding on or affecting the Seller or
the Servicer, and do not result in or require the creation of
any Adverse Claim (other than pursuant hereto) upon or with
respect to any of its properties; and no transaction
contemplated hereby requires compliance with any bulk sales act
or similar law.
(c) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Seller or the Servicer of the Sale Documents,
or for the perfection of or the exercise by the Purchaser of its
rights and remedies under the Sale Documents, except for the
filing of the financing statements referred to in Section 4.1.2.
(d) Each Sale Document constitutes the legal, valid and
binding obligation of the Seller and the Servicer, respectively,
enforceable in accordance with its terms.
(e) There is no pending or threatened action or
proceeding affecting the Seller or the Servicer or any of its
subsidiaries before any court, governmental agency or arbitrator
which may materially adversely affect (i) its financial
condition or operations or (ii) its ability to perform its
obligations under the Sale Documents, or which could affect the
legality, validity or enforceability of any Sale Document or of
the interest of the Purchaser in the Purchased Receivables.
(f) Immediately prior to the transfer and assignment
herein contemplated, the Seller had good and marketable title to
the Receivables, the Related Security and Collections, free and
clear of any Adverse Claim, except as created by this Agreement;
upon consummation of each Purchase, the Purchaser will acquire
good and marketable title to the Purchased Receivables and to
the Related Security and the Collections with respect thereto,
free and clear of any Adverse Claim, except as created by this
Agreement, and such transfer has been perfected under the
Uniform Commercial Code enacted in the State of Michigan.
(g) The information provided by the Seller to the
Servicer for use in each Servicer Report prepared under Section
5.5 and all information and Sale Documents
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furnished or to be furnished at any time by the Seller to the
Administrative Agent in connection with this Agreement is or
will be accurate in all material respects as of its date, and no
such document will contain any untrue statement of a material
fact or will omit to state a material fact which is necessary to
make the facts stated therein not misleading.
(h) The Seller is treating the conveyance of the
interest in the Purchased Receivables and the Collections under
this Agreement to the Purchaser as a sale for purposes of
generally accepted accounting principles.
ARTICLE VIII
COVENANTS
Section 8.1. Affirmative Covenants of the Seller and the
Servicer. Until the Investment is reduced to zero and all other amounts due
to the Purchaser hereunder have been paid in full, each of the Seller and the
Servicer (with respect to itself) will, unless the Purchaser has otherwise
consented in writing:
(a) Maintain its existence in the jurisdiction of its
organization or incorporation, and qualify and remain qualified
in good standing as a foreign corporation or limited liability
company in each jurisdiction where the failure to be so
qualified could materially adversely affect its ability to
perform its obligations hereunder.
(b) Maintain and implement administrative and operating
procedures, and keep and maintain all records and other
information, reasonably necessary or advisable for the
collection of the Purchased Receivables (including, without
limitation, records adequate to permit the daily identification
of Purchased Receivables and all Collections and adjustments to
Purchased Receivables).
(c) At its expense timely and fully perform and comply
with all material provisions and covenants required to be
observed by CFC or the Seller under the Contracts related to the
Purchased Receivables.
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(d) Comply in all material respects with the Credit and
Collection Policy in regard to each Purchased Receivable and any
Contract related to such Receivable.
(e) Treat the conveyance of the interest in the
Purchased Receivables and the Collections under this Agreement
as a sale for purposes of generally accepted accounting
principles.
Section 8.2 Reporting Requirements of the Servicer. Until the
Investment is reduced to zero and all amounts due to the Purchaser hereunder
have been paid in full, the Servicer will, unless the Purchaser shall
otherwise consent in writing, furnish to the Purchaser:
(a) the Servicer Report as required under Section 5.4;
(b) as soon as possible, and in any event within thirty
days shall describe such event or condition and, if applicable,
the steps being taken with respect thereto by the Person(s)
affected thereby, of: (i) the occurrence of any Servicer Default
or event which with the passage of time or the giving of notice
or both would constitute a Servicer Default or (ii) the
institution of any litigation, arbitration proceeding or
governmental proceeding which could be reasonably likely to have
a material adverse effect on the performance by the Servicer of
its obligations under this Agreement or the other Sale Documents
or the collectibility of the Purchased Receivables; and
(c) such other information, documents, records or
reports respecting the Purchased Receivables or the condition or
operations, financial or otherwise, of the Servicer or the
Seller as the Purchaser may from time to time reasonably
request.
Section 8.3. Negative Covenants of the Seller and the Servicer.
Until the Investment is reduced to zero and all other amounts due to the
Purchaser hereunder have been paid in full, neither the Seller nor the
Servicer will, unless the Purchaser has otherwise consented in writing:
(a) Except as provided herein, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Adverse Claim upon or with respect
to any Purchased Receivables, the Related Security or any
Collections or assign any right to receive income in respect
thereof; or
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(b) Amend or otherwise modify the terms of any Purchased
Receivable, or amend, modify or waive any term or condition of
any Contract related thereto, in each case, in any manner which
is inconsistent with the Credit and Collection Policy.
Section 8.4. Protection of the Purchaser's Interest. (a) Until
the Investment is reduced to zero and all other amounts due to the Purchaser
hereunder have been paid in full, each of the Seller and the Servicer agrees
that from time to time, at its expense, it will promptly execute and deliver
all instruments and documents and take all action that the Administrative
Agent may from time to time reasonably request in order to perfect, evidence
and protect the validity, enforceability, perfection and priority of the
Administrative Agent's and the Purchaser's interests in the Purchased
Receivables, the Related Security and the Collections and to enable the
Administrative Agent and/or the Purchaser to exercise or enforce any of its
rights hereunder. Without limiting the generality of the foregoing, the
Seller and the Servicer will: (i) on or prior to the date hereof, xxxx its
master data processing records with a legend describing the Administrative
Agent's and the Purchaser's interests therein; and (ii) upon the request of
the Administrative Agent, execute and file such financing or continuation
statements or amendments thereto or assignments thereof as may be requested
by the Administrative Agent, provided, however, that, subject to Section 6.5,
the Seller is not required to deliver the Contracts to anyone other than the
Servicer;
(b) To the fullest extent permitted by applicable law, the
Administrative Agent shall be permitted to sign and file continuation
statements and amendments thereto and assignments thereof without the
Seller's signature. Carbon, photographic or other reproduction of this
Agreement or any financing statement shall be sufficient as a financing
statement.
Section 8.5. Servicer Indemnities. CFC shall indemnify, defend
and hold harmless the Administrative Agent and the Purchaser, and each of
their respective officers, directors, employees and agents from and against
any loss, liability or expense arising from the use, ownership or operation
by CFC or any of its Affiliates of a Financed Vehicle or CFC's willful
misfeasance or negligence in the performance of its duties under this
Agreement (as Servicer or otherwise).
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ARTICLE IX
ADMINISTRATIVE AGENT
Section 9.1. Appointment of Administrative Agent. The Purchaser
has appointed ABN AMRO Bank N.V. as its Administrative Agent. The
Administrative Agent is responsible for administering and enforcing this
Agreement (including holding all Investment) for the benefit of the Purchaser
and fulfilling all other duties expressly assigned to it in this Agreement.
The Purchaser has granted the Administrative Agent the authority to take all
actions necessary to assure the Seller's compliance with the terms of this
Agreement and to take all actions required or permitted to be performed by
the Purchaser under this Agreement.
Section 9.1.1. Replacement of Administrative Agent. The
Purchaser may, at any time in its discretion, remove a Administrative Agent
and appoint a new Administrative Agent, which shall have the duties described
in Section 9.1.
ARTICLE X
MISCELLANEOUS
Section 10.1. Amendments, Etc. No amendment or waiver of, or
consent to the Seller's or the Servicer's departure from, any provision of
this Agreement shall be effective unless it is in writing and signed by the
parties hereto and then such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given.
Section 10.2. Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including photocopy, facsimile, electronic mail or other digital
communication) and sent, as to each party hereto, at its address set forth
under its name on the signature pages hereto, or at such other address as
shall be designated by such party in a written notice to the other parties
hereto. All such notices and communications shall be effective when sent.
Section 10.3. No Waiver; Remedies. No failure on the part of the
Purchaser to exercise, and no delay in exercising, any right hereunder or
under any Sale Document shall
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operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 10.4. Binding Effect; Assignability. (a) This Agreement
shall be binding upon and inure to the benefit of the Seller, the Servicer,
the Purchaser, the Administrative Agent and their respective successors and
assigns, except that the Seller shall not have the right to assign any
interest herein without the prior written consent of the Purchaser. The
Purchaser may assign any of its rights or obligations hereunder to any
Person; provided that in the case of any such assignment other than pursuant
to a Liquidity Facility or Credit Facility proposed to be made prior to the
occurrence of a Servicer Default, the consent of the Seller (which consent
shall not be unreasonably withheld) shall be required.
(b) This Agreement shall create and constitute the continuing
obligation of the parties hereto in accordance with its terms, and shall
remain in full force and effect until such time as the Investment is reduced
to zero and all other amounts due to the Purchaser hereunder have been paid
in full; provided, however, that the rights and remedies of the Purchaser
under Section 8.5 shall survive any termination of this Agreement.
Section 10.5. Governing Law. This Agreement and the Sale
Documents shall be governed by, and construed in accordance with, the laws of
the State of New York.
Section 10.6. Construction of the Agreement. The parties hereto
intend that the conveyance of the interest in the Purchased Receivables by
the Seller to the Purchaser (through the Administrative Agent) shall be
treated as sales for purposes of generally accepted accounting principles.
If, despite such intention, a determination is made that such transactions
shall not be treated as sales, then this Agreement shall be interpreted to
constitute a security agreement and the transactions effected hereby shall be
deemed to constitute a secured financing by the Purchaser to the Seller under
applicable law. For such purpose, the Seller hereby grants to the
Administrative Agent, for the benefit of the Purchaser, a continuing security
interest in the Purchased Receivables and the Related Security and
Collections related thereto to secure the obligations of the Seller to the
Purchaser hereunder.
Section 10.7. Agreement Not To Petition. Each party hereto
agrees, for the benefit of the holders of the privately or publicly placed
indebtedness for borrowed money of the
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Purchaser, not, prior to the date which is one (1) year and one (1) day after
the payment in full of all such indebtedness, to acquiesce, petition or
otherwise, directly or indirectly, invoke, or cause the Purchaser to invoke,
any process for the purpose of (a) commencing or sustaining a case against
the Purchaser under any federal or state bankruptcy, insolvency or similar
law (including the Federal Bankruptcy Code), (b) appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official for the Purchaser, or any substantial part of its property, or (c)
ordering the winding up or liquidation of the affairs of the Purchaser.
Section 10.8. Excess Funds. The Purchaser shall be required to
make payment of the amounts required to be paid pursuant to this Agreement
only if the Purchaser has Excess Funds (as defined below). In the event that
the Purchaser does not have Excess Funds, the excess of the amount due
hereunder over the amount paid shall not constitute a "claim" (as defined in
Section 101(5) of the Federal Bankruptcy Code) against the Purchaser until
such time as the Purchaser has Excess Funds. If the Purchaser does not have
sufficient Excess Funds to make any payment due hereunder, then the Purchaser
may pay a lesser amount and make additional payments which in the aggregate
equal the amount of deficiency as soon as possible thereafter. The term
"Excess Funds" shall mean the excess of (a) the aggregate projected value of
the Purchaser's assets and other property (including cash and cash
equivalents), over (b) the sum of (i) the sum of all scheduled payments of
principal, interest and any other scheduled amounts payable on publicly or
privately placed indebtedness of Windmill for borrowed money, plus (ii) the
sum of all other liabilities, indebtedness and other obligations of the
Purchaser for borrowed money or owed to any credit or liquidity provider,
together with all unpaid interest then accrued thereon, plus (iii) all taxes
payable by the Purchaser to the Internal Revenue Service, plus (iv) all other
indebtedness, liabilities and obligations of the Purchaser then due and
payable; provided, however, that the amount of any liability, indebtedness or
obligation of the Purchaser shall not exceed the projected value of the
assets to which recourse for such liability, indebtedness or obligation is
limited; provided further, however, that the Excess Funds determination will
be made once each Business Day.
Section 10.9. Confidentiality. The Purchaser agrees to maintain
the confidentiality of any information regarding the Seller obtained in
accordance with the terms of this Agreement which is not publicly available,
but the Purchaser may, with advance notice to the Seller, reveal such
information (a) to applicable rating agencies, liquidity providers and credit
providers, (b) as necessary or appropriate in connection with the
administration or enforcement of this Agreement or its funding of each
Purchase under this Agreement, (c) as required by law,
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government regulation, court proceeding or subpoena or (d) to bank regulatory
agencies and examiners.
Section 10.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed by their duly authorized officers as of the date set forth on the
cover page of this Agreement.
PREMIER RECEIVABLES L.L.C.
as Seller
By: /X. X. Xxxxx/
Title: of Premier Auto
Receivables Company, a Member of the Seller
Address: 00000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Assistant Secretary
Facsimile: 000-000-0000
CHRYSLER FINANCIAL CORPORATION
as Servicer
By: /X. X. Xxxxx/
Title:
Address: 00000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Assistant Secretary
Facsimile: 000-000-0000
WINDMILL FUNDING CORPORATION,
as Purchaser
By: /Xxxxxx Xxxxx/
Address: c/o Global Securitization Services,
LLC
00 Xxxx 00xx Xxxxxx
-00-
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABN AMRO BANK N.V.,
as Administrative Agent
By: /Xxxxxx Xxxxx/
_______________________
Title: Senior Vice President
By: /Xxxxxxx Xxxx/
Title: Senior Vice President
Address: Structured Finance,
Asset Securitization
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Windmill
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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EXHIBIT A
FORM OF SERVICER REPORT
EXHIBIT B
FORM OF OPINION OF COUNSEL
