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AAM MASTER TRUST
SERIES 1997-A SUPPLEMENT
TO
POOLING AGREEMENT
Dated as of October 29, 1997
Among
AAM RECEIVABLES CORP.
AMERICAN AXLE & MANUFACTURING, INC.
as Servicer
and
THE CHASE MANHATTAN BANK
as Trustee
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TABLE OF CONTENTS
ARTICLE I
Definitions
Page
SECTION 1.01. Definitions...............................................................................1
ARTICLE II
Designation of VFC Certificates; Purchase and
Sale of the VFC Certificates
SECTION 2.01. Designation..............................................................................20
SECTION 2.02. The VFC Certificates and Series 1997-A
Subordinated Interest......................................................20
SECTION 2.03. Purchases of Interests in the VFC
Certificates and the Series 1997-A
Subordinated Interest......................................................21
SECTION 2.04. Delivery.................................................................................21
SECTION 2.05. Procedure for Initial Issuance and for
Increasing the Series 1997-A Invested
Amount.....................................................................22
SECTION 2.06. Procedure for Decreasing the Series
1997-A Invested Amount; Optional
Termination................................................................23
SECTION 2.07. Reductions of the Commitments............................................................25
SECTION 2.08. Interest; Commitment Fee.................................................................25
SECTION 2.09. Indemnification by the Company and
the Servicer...............................................................26
ARTICLE III
Article III of the Agreement
SECTION 3A.02. Establishment of Trust Accounts.........................................................28
SECTION 3A.03. Daily Allocations.......................................................................29
SECTION 3A.04. Determination of Interest...............................................................32
SECTION 3A.05. Determination of Series 1997-A Monthly
Principal.................................................................34
SECTION 3A.06. Applications............................................................................35
Series 1997-A Supplement Contents, p. ii
ARTICLE IV
Distributions and Reports
Page
SECTION 4A.01. Distributions...........................................................................37
SECTION 4A.02. Daily Reports...........................................................................38
SECTION 4A.03. Statements and Notices..................................................................38
ARTICLE V
Additional Early Amortization Events
SECTION 5.01. Additional Early Amortization Events.....................................................39
ARTICLE VI
Servicing Fee
SECTION 6.01. Servicing Compensation...................................................................43
ARTICLE VII
Change in Circumstances
SECTION 7.01. Illegality...............................................................................43
SECTION 7.02. Requirements of Law......................................................................44
SECTION 7.03. Taxes....................................................................................46
SECTION 7.04. Indemnity................................................................................50
SECTION 7.05. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate............................................51
SECTION 7.06. Limitation...............................................................................52
ARTICLE VIII
Covenants, Representations and Warranties
SECTION 8.01. Representations and Warranties
of the Company and the Servicer............................................53
SECTION 8.02. Covenants of the Company and
the Servicer...............................................................53
SECTION 8.03. Covenants of the Servicer................................................................54
SECTION 8.04. Covenant of the Company..................................................................55
Series 1997-A Supplement Contents, p. iii
Page
SECTION 8.05. Obligations Unaffected...................................................................55
SECTION 8.06. Representations and Warranties of the
Initial Purchasers and any Acquiring
Purchasers..................................................................55
ARTICLE IX
Conditions Precedent
SECTION 9.01. Conditions Precedent to Effectiveness
of Supplement..............................................................56
ARTICLE X
The Agent
SECTION 10.01. Appointment.............................................................................60
SECTION 10.02. Delegation of Duties....................................................................60
SECTION 10.03. Exculpatory Provisions..................................................................60
SECTION 10.04. Reliance by Agent.......................................................................61
SECTION 10.05. Notice of Servicer Default or Early
Amortization Event or Potential Early
Amortization Event........................................................61
SECTION 10.06. Non-Reliance on Agent and Other
Purchasers................................................................62
SECTION 10.07. Indemnification.........................................................................63
SECTION 10.08. Agent in Its Individual Capacity........................................................63
SECTION 10.09. Successor Agent.........................................................................63
ARTICLE XI
Miscellaneous
SECTION 11.01. Ratification of Agreement...............................................................64
SECTION 11.02. Governing Law...........................................................................64
SECTION 11.03. Further Assurances......................................................................64
SECTION 11.04. Payments................................................................................64
SECTION 11.05. Costs and Expenses......................................................................65
SECTION 11.06. No Waiver; Cumulative Remedies..........................................................65
SECTION 11.07. Amendments..............................................................................65
SECTION 11.08. Severability............................................................................66
SECTION 11.09. Notices.................................................................................67
SECTION 11.10. Successors and Assigns..................................................................67
Series 1997-A Supplement Contents, p. iv
Page
SECTION 11.11. Counterparts............................................................................72
SECTION 11.12. Adjustments; Setoff.....................................................................72
SECTION 11.13. Limitation of Payments by Company.......................................................73
SECTION 11.14. No Bankruptcy Petition..................................................................73
ARTICLE XII
Final Distributions
SECTION 12.01. Certain Distributions...................................................................74
Series 1997-A Supplement
SERIES 1997-A SUPPLEMENT dated as of
October 29, 1997 (this "Supplement"), among AAM
RECEIVABLES CORP., a Delaware corporation (the
"Company"), AMERICAN AXLE & MANUFACTURING, INC., a
Delaware corporation, as servicer (the "Servicer"),
THE CHASE MANHATTAN BANK, as the initial purchaser
(the "Initial Purchaser"), the other financial
institutions from time to time parties hereto as
purchasers pursuant to Section 11.10, THE CHASE
MANHATTAN BANK, a New York corporation, as agent
(the "Agent") for the Purchasers (as hereinafter
defined) in its individual capacity and not as
Trustee and THE CHASE MANHATTAN BANK, in its
capacity as trustee (the "Trustee") under the
Agreement.
W I T N E S S E T H :
WHEREAS, the Company, the Servicer and the Trustee have
entered into the Pooling Agreement, dated as of October 29, 1997 (the
"Agreement");
WHEREAS, the Agreement provides, among other things, that
the Company, the Servicer and the Trustee may at any time and from time to
time enter into supplements to the Agreement for the purpose of authorizing
the issuance on behalf of the Trust by the Company for execution and
redelivery to the Trustee for authentication of one or more Series of Investor
Certificates; and
WHEREAS, the Company, the Servicer, the Trustee and the
Initial Purchaser wish to supplement the Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, and other good and valuable consideration,
the receipt and sufficiency of which are hereby expressly acknowledged, the
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. (a) The following
words and phrases shall have the following meanings with
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Series 1997-A Supplement
respect to Series 1997-A and the definitions of such terms are applicable to
the singular as well as the plural form of such terms and to the masculine as
well as the feminine and neuter genders of such terms:
"ABR" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If for any reason, the Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the failure of the Federal Reserve Bank of New York to
publish rates or the inability of the Agent to obtain quotations in accordance
with the terms thereof, the ABR shall be determined without regard to clause
(b) of the immediately preceding sentence until the circumstances giving rise
to such inability no longer exist. Any change in the ABR due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively. The term "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Agent 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 as being
effective. The term "Federal Funds Effective Rate" shall mean, for any day,
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 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 of the quotations for the day for such transactions received
by the Agent from three Federal funds brokers of recognized standing selected
by it.
"Accrual Period" shall mean, with respect to Series 1997-A,
the period from and including a Distribution Date to but excluding the next
succeeding Distribution Date; provided that in the case of a Eurodollar
Tranche with a NIBO Period, it shall mean the period from and including the
Increase Date to but excluding the next succeeding Distribution Date; provided
further that in the case of the initial Accrual Period, it shall mean the
period from and including the Issuance Date to but excluding the next
succeeding Distribution Date.
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Series 1997-A Supplement
"Accrued Expense Adjustment" shall mean, for any Business
Day in any Accrual Period, the amount, if any, which may be less than zero,
equal to the difference between (a) the entire amount of (i) the Commitment
Fee, if any, due and payable on the next succeeding Distribution Date, (ii)
the Series 1997-A Monthly Interest to be distributed on the next succeeding
Distribution Date, (iii) the Series 1997-A Monthly Servicing Fee, (iv) the
aggregate amount of all previously accrued, unpaid and unallocated Series
1997-A Monthly Interest for prior Distribution Dates, (v) the aggregate amount
of all accrued, unpaid and unallocated Additional Interest and (vi) all
accrued Program Costs, in each case for such Accrual Period determined as of
such day, and (b) the aggregate of the amounts transferred to the Series
1997-A Non-Principal Collection Sub-subaccount on or before such day in
respect of such Accrual Period pursuant to subsection 3A.03(a)(i), before
giving effect to any transfer made in respect of the Accrued Expense
Adjustment on such day pursuant to the proviso contained in such subsection.
"Accrued Expense Amount" shall mean, for each Business Day
during an Accrual Period, the sum of (a) for Floating Tranches and Eurodollar
Tranches with Eurodollar Periods, in the case of each of the first ten
Business Days in the Accrual Period, one-tenth of the Series 1997-A Monthly
Interest determined as of such Business Day, (b) for Eurodollar Tranches with
NIBO Periods, in the case of each Business Day in the Accrual Period, the
Daily Interest Expense determined as of such Business Day, (c) in the case of
each of the first ten Business Days in the Accrual Period, one-tenth of the
Commitment Fee payable to the VFC Certificate holders on the next succeeding
Distribution Date, (d) in the case of each of the first ten Business Days in
the Accrual Period, one-tenth of the Series 1997-A Monthly Servicing Fee (in
the case of each of the foregoing clauses (a) through (d), up to the amount
thereof due and payable on such next succeeding Distribution Date, but subject
to Accrued Expense Adjustments as provided in subsection 3A.03(a)(i)), (e) the
aggregate amount of all previously accrued, unpaid and unallocated Series
1997-A Monthly Interest for prior Distribution Dates, (f) the aggregate amount
of all accrued, unpaid and unallocated Additional Interest and (g) all Program
Costs that have accrued since the preceding Business Day.
"Acquiring Purchaser" shall have the meaning
assigned in subsection 11.10(b).
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Series 1997-A Supplement
"Additional Interest" shall have the meaning
assigned in subsection 3A.04(b).
"Agent" shall have the meaning specified in the
recitals hereto.
"Aggregate Commitment Amount" shall mean, with respect to
any Business Day, the aggregate amount of the Commitments of all Purchasers on
such date, as reduced from time to time pursuant to Section 2.07.
"Aggregate Receivables Amount" shall mean with respect to
any date of determination, (i) the aggregate Principal Amount of all Eligible
Receivables in the Trust at the end of the Business day immediately preceding
such date minus (ii) the Aggregate Overconcentration Amount for such date;
provided that notwithstanding anything to the contrary contained herein,
during any GMT/PPAP Rejection Period, no Tooling Receivables relating to the
GMT 800 Program shall be included in the calculation of the Aggregate
Receivables Amount.
"Applicable Margin" shall mean at any date of determination
until the Margin Increase Date, for each Eurodollar Tranche, 0.75% per annum
and, for the Floating Tranche, 0.0% per annum, provided that from and after
the Margin Increase Date, the Applicable Margin at any time shall be equal to
the LIBOR Margin at such time (as set forth on Schedule B to the Credit
Agreement) for each Eurodollar Tranche and the ABR Margin at such time (as set
forth on Schedule B to the Credit Agreement) for the Floating Tranche.
"Article VII Costs" shall mean any amounts due
pursuant to Article VII.
"Available Commitment" shall mean, with respect to any
Business Day, the (i) Aggregate Commitment Amount on such Business Day minus
(ii) the Series 1997-A Invested Amount.
"Available Pricing Amount" shall mean, on any Business Day,
the sum of (i) the Unallocated Balance plus (ii) the Increase, if any, on such
date.
"Benefitted Purchaser" shall have the meaning
assigned in Section 11.12.
"Carrying Cost Reserve Ratio" shall mean, as of
any Settlement Report Date and continuing until (but not
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Series 1997-A Supplement
including) the next Settlement Report Date, an amount (expressed as a
percentage) equal to (a) the product of (i) 2.0 times Days Sales Outstanding
as of such day and (ii) 1.30 times the ABR in effect as of such day divided by
(b) 365.
"Certificate Rate" shall mean on any date of determination,
the average (weighted based on the respective outstanding amounts of the
Floating Tranche and each Eurodollar Tranche) of the ABR in effect on such day
and One-Month LIBOR or the NIBO Rate in effect on such day plus, in each case,
the Applicable Margin.
"Change in Control" shall mean the occurrence of any event
the result of which causes the Company not to be a direct or indirect, wholly
owned Subsidiary of American Axle & Manufacturing, Inc.
"Claim" shall have the meaning specified in
subsection 2.09(a).
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" shall mean, as to any Purchaser, its obligation
to maintain and, subject to certain conditions, increase, its Series 1997-A
Purchaser Invested Amount, in an aggregate amount not to exceed at any one
time outstanding the amount set forth opposite such Purchaser's name on
Schedule 1 under the caption "Commitment", as such amount may be reduced from
time to time as provided herein; collectively, as to all Purchasers, the
"Commitments".
"Commitment Fee" shall have the meaning assigned
in subsection 2.08(b).
"Commitment Percentage" shall mean, as to any Purchaser and
as of any date, the percentage equivalent of a fraction, the numerator of
which is such Purchaser's Commitment as set forth on Schedule 1 and the
denominator of which is the Aggregate Commitment Amount as of such date.
"Commitment Period" shall mean the period commencing on the
Issuance Date and terminating on the date that the Series 1997-A Amortization
Period commences.
"Commitment Reduction" shall have the meaning
assigned in subsection 2.07(a).
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Series 1997-A Supplement
"Commitment Termination Date" shall mean the earlier of (a)
the Scheduled Revolving Termination Date and (b) the date on which the
Commitments are terminated in whole pursuant to Section 2.07.
"Commitment Transfer Supplement" shall have the
meaning assigned in subsection 11.10(c).
"Company Indemnified Person" shall have the
meaning assigned in subsection 2.09(a).
"Credit Agreement" shall mean the Credit Agreement dated as
of October 27, 1997, among American Axle & Manufacturing of Michigan, Inc.,
the Seller, the lenders named therein, The Chase Manhattan Bank, as
Administrative Agent and Collateral Agent, and Chase Manhattan Bank Delaware,
as Fronting Bank (including any amendments or modifications thereto or
refinancing thereof).
"Daily Interest Adjustment" shall mean, for any Business Day
in any Accrual Period, the amount, if any, which may be less than zero, equal
to the difference between (i) the sum of (A) the Series 1997-A Monthly
Interest determined as of such day, (B) the aggregate amount of all previously
accrued, unpaid and unallocated Series 1997-A Monthly Interest for prior
Distribution Dates and (C) the aggregate amount of all accrued, unpaid and
unallocated Additional Interest and (ii) the amount on deposit in the Series
1997-A Accrued Interest Sub-subaccount on such day after making any deposit
thereto pursuant to subsection 3A.03(c), before giving effect to any transfer
made in respect of the Daily Interest Adjustment on such day pursuant to the
proviso to such subsection.
"Daily Interest Deposit" shall mean, for any Business Day,
an amount equal to (i) the amount of accrued and unpaid Daily Interest Expense
in respect of such day plus (ii) the aggregate amount of all previously
accrued, unpaid and unallocated Series 1997-A Monthly Interest for prior
Distribution Dates plus (iii) the aggregate amount of all accrued, unpaid and
unallocated Additional Interest.
"Daily Interest Expense" for any day in any Accrual Period,
shall mean the sum of (A) the product of (i) the portion of the Series 1997-A
Invested Amount (calculated without regard to clauses (d) and (e) of the
definition of Series 1997-A Purchaser Invested Amount) allocable to the
Floating Tranche on such day divided by 365 and (ii) the ABR plus the
Applicable Margin in effect on such day, and (B) the product of (i) the
portion of the
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Series 1997-A Supplement
Series 1997-A Invested Amount (calculated without regard to clauses (d) and
(e) of the definition of Series 1997-A Purchaser Invested Amount) allocable to
Eurodollar Tranches on such day divided by 360 and (ii) either (A) One-Month
LIBOR if the Eurodollar Tranche has a Eurodollar Period or (B) the NIBO Rate
if the Eurodollar Tranche has a NIBO Period plus the Applicable Margin on such
day in effect with respect thereto; provided, however, that for the purposes
of calculating Series 1997-A Monthly Interest, the "Daily Interest Expense"
for any day following the date of determination shall be based on the
allocable portions of the Series 1997-A Invested Amount, the ABR, One-Month
LIBOR, the NIBO Rate and the Applicable Margins as of or in effect on such
date of determination; provided further that for any such day during the
continuation of an Early Amortization Period, the "Daily Interest Expense" for
such day shall be equal to the greater of (i) the sum of the amounts
calculated pursuant to clauses (A) and (B) above and (ii) the product of (x)
the Series 1997-A Invested Amount on such day divided by 365 and (y) the ABR
in effect on such day plus 2.00% per annum.
"Daily Report" shall mean a report prepared by the Servicer
on each Business Day for the period specified therein, in substantially the
form of Exhibit D.
"Days Sales Outstanding" shall mean, as of any Settlement
Report Date and continuing until the next Settlement Report Date, the number
of days equal to the product of (a) 91 and (b) the amount obtained by dividing
(i) the Aggregate Receivables Amount as at the last day of the Settlement
Period immediately preceding such earlier Settlement Report Date, by (ii) the
aggregate Principal Amount of Receivables originated by the Seller (whether or
not billed) for the three Settlement Periods immediately preceding such
earlier Settlement Report Date, computed solely with respect to Receivables of
Designated Obligors.
"Decrease" shall have the meaning assigned in
Section 2.06.
"Designated Obligor" shall mean GM, Ford and any other
Obligor designated by the Servicer and approved by the Agent, provided that if
such other Obligor is of a credit quality comparable to GM, then such approval
shall not be unreasonably withheld, from time to time based on criteria
provided by the Agent to the Servicer.
"Dilution Horizon Factor" shall mean 1.0.
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Series 1997-A Supplement
"Dilution Period" shall mean, as of any Settlement Report
Date and continuing until (but not including) the next Settlement Report Date,
the quotient of (i) the product of (A) the aggregate Principal Amount of
Receivables that were initially billed by the Seller during the Settlement
Period preceding such earlier Settlement Report Date and (B) the Dilution
Horizon Factor and (ii) the aggregate Principal Amount of all Eligible
Receivables billed to Designated Obligors in the Trust as of the last day of
the Settlement Period preceding such earlier Settlement Report Date, computed
solely with respect to Receivables of Designated Obligors.
"Dilution Ratio" shall mean, as of the last day of each
Settlement Period, an amount (expressed as a percentage) equal to the
aggregate amount of Dilution Adjustments made during such Settlement Period
divided by the aggregate Principal Amount of Receivables that were initially
billed by the Seller during such Settlement Period, computed solely with
respect to Receivables of Designated Obligors.
"Dilution Reserve Ratio" shall mean, as of any Settlement
Report Date and continuing until (but not including) the next Settlement
Report Date, an amount (expressed as a percentage) that is calculated as
follows:
DRR = [(c * d) + e] * f
Where:
DRR = Dilution Reserve Ratio;
c = 2.00;
d = the average of the Dilution Ratio that occurred during the
period of twelve consecutive Settlement Periods ending
immediately prior to such earlier Settlement Report Date;
e = The product of (i) the twelve-month Sample Standard
Deviation of the Dilution Ratio as of the end of each of the
twelve consecutive Settlement Periods immediately preceding
such earlier Settlement Report Date and (ii) 1.96.
f = the Dilution Period.
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Series 1997-A Supplement
"Distribution Date" shall mean (i) in the case of a Floating
Tranche or a Eurodollar Tranche with a Eurodollar Period, the 15th day of the
month, or if such 15th day is not a Business Day, the next succeeding Business
Day or (ii) in the case of a Eurodollar Tranche with a NIBO Period, the NIBO
Distribution Date.
"Early Amortization Event" shall have the meanings assigned
in Section 5.01 of this Supplement and Section 7.01 of the Agreement.
"Early Amortization Period" shall have the meaning assigned
in Section 5.01 of this Supplement and Section 7.01 of the Agreement.
"Effective Date" shall have the meaning assigned
in Section 9.01.
"Eurodollar Lending Office" means, as to the Trustee or any
successor thereto, its office, branch or affiliate as it may designate as its
Eurodollar Lending Office by notice to the Purchasers and the Agent.
"Eurodollar Period" shall mean, with respect to
any Eurodollar Tranche:
(a) initially, the period commencing on the Issuance Date,
Increase Date or conversion date, as the case may be, with respect to
such Eurodollar Tranche and ending one month thereafter; and
(b) thereafter, each period commencing on the last day of
the immediately preceding Eurodollar Period applicable to such
Eurodollar Tranche and ending one month thereafter;
provided that, all of the foregoing provisions relating to
Eurodollar Periods are subject to the following:
(1) if any Eurodollar Period would otherwise end on a day
that is not a Business Day, such Eurodollar Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Eurodollar Period into another
calendar month in which event such Eurodollar Period shall end on the
immediately preceding Business Day;
(2) any Eurodollar Period that would otherwise extend beyond
the Scheduled Revolving Termination Date
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Series 1997-A Supplement
shall end on the Scheduled Revolving Termination Date;
and
(3) any Eurodollar Period 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 Eurodollar Period) shall end on the last Business Day of a
calendar month.
"Eurodollar Tranche" shall mean a portion of the Series
1997-A Invested Amount for which the Series 1997-A Monthly Interest is
calculated by reference to One-Month LIBOR or the NIBO Rate determined by
reference to a particular Eurodollar Period or NIBO Period.
"Excess Program Costs" shall have the meaning assigned to
such term within the definition of "Program Costs".
"Floating Tranche" shall mean that portion of the Series
1997-A Invested Amount not allocated to a Eurodollar Tranche for which the
Series 1997-A Monthly Interest is calculated by reference to the ABR.
"GMT/PPAP Rejection Period" shall mean the period commencing
on any date on which the Seller shall fail any GM Production Part Approval
Process with respect to the GMT 800 Program such that GM informs the Seller
that it does not intend to pay its outstanding obligations with respect to the
GMT 800 Program and ending on the date that the Seller has received notice
from GM that the Seller has complied with such GM Production Part Approval
Process, and GM has informed the Seller that it intends to pay its obligations
with respect to the GMT 800 Program or has made any payments in respect
thereof.
"Increase" shall have the meaning assigned in
subsection 2.05(a).
"Increase Amount" shall have the meaning assigned
in subsection 2.05(a).
"Increase Date" shall have the meaning assigned in
subsection 2.05(a).
"Initial Purchaser" shall have the meaning
specified in the recitals hereto.
"Initial Series 1997-A Invested Amount" shall mean
$75,000,000.
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Series 1997-A Supplement
"Initial Series 1997-A Subordinated Interest
Amount" shall mean the Series 1997-A Subordinated Interest
Amount in respect of the Issuance Date.
"Interest Shortfall" shall have the meaning
assigned in subsection 3A.04(b).
"Invested Amount" shall mean, with respect to Series 1997-A,
the Series 1997-A Invested Amount.
"Issuance Date" shall mean October 29, 1997.
"Majority Purchasers" shall mean, on any day, Purchasers
having, in the aggregate, more than 50% of the Aggregate Commitment Amount.
"Margin Increase Date" shall mean the date that is 270 days
after the initial Receivables Purchase Date, or, if such date is not a
Business Day, the next succeeding Business Day.
"Maximum Commitment Amount" shall mean
$125,000,000.
"Maximum Invested Amount" shall mean, as of any day, the
lesser of (a) the Maximum Commitment Amount as of such day and (b) the
Aggregate Receivables Amount as of such day minus the Series 1997-A Required
Subordinated Amount as of such day.
"Minimum Ratio" shall mean 5.0%.
"Monthly Interest Payment" shall have the meaning
assigned in subsection 3A.06(b).
"NIBO Distribution Date" shall mean the last day
of any NIBO Period.
"NIBO Period" means, with respect to any
Eurodollar Tranche:
(a) initially, the period commencing on the Issuance Date,
Increase Date or conversion date, as the case may be, with respect to
such Eurodollar Tranche and ending one week, two weeks, or three
weeks thereafter, as determined by the Company pursuant to this
Agreement; and
(b) thereafter, each period commencing on the last day of
the immediately preceding NIBO Period
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Series 1997-A Supplement
applicable to such Eurodollar Tranche and ending one week, two weeks,
or three weeks thereafter, as determined by the Company pursuant to
this Agreement;
provided that, all of the foregoing provisions relating to
NIBO Periods are subject to the following:
(1) if any NIBO Period would otherwise end on a day that is
not a Business Day, such NIBO Period shall be extended to the next
succeeding business Day; and
(2) any NIBO Period that would otherwise extend beyond the
Scheduled Revolving Termination Date shall end on the Scheduled
Revolving Termination Date.
"NIBO Rate" means, with respect to any Eurodollar Tranche
for any NIBO Period, an interest rate per annum (rounded upwards, if
necessary, to the next higher 1/16 of 1%) equal to the interest rate at which
dollar deposits of $1,000,000 and for a maturity comparable to such NIBO
Period are offered in immediately available funds to the Trustee at the
Eurodollar Lending Office where its foreign currency and exchange operations
and Eurodollar funding operations are customarily conducted in the
international interbank market at approximately 11:00 A.M., New York City
time, two Business Days prior to the commencement of such NIBO Period.
"One-Month LIBOR" shall mean, with respect to any Eurodollar
Tranche for any Eurodollar Period, the rate per annum, as recorded by the
Trustee, which is the rate (rounded to the nearest 1/16 of 1%) at which U.S.
Dollar deposits in a principal amount of not less than $1,000,000 maturing in
one month are offered to the principal London office of the Trustee in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Eurodollar Period.
"Optional Repurchase Percentage" shall mean 10% of the
largest Series 1997-A Invested Amount at any time on or before the date of
determination.
"Optional Termination Date" shall have the meaning
assigned in subsection 2.06(d)(i).
"Optional Termination Notice" shall have the
meaning assigned in subsection 2.06(d)(i).
"Participants" shall have the meaning assigned in
subsection 11.10(f).
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Series 1997-A Supplement
"Program Costs" shall mean, for any Business Day, the sum of
(i) all expenses, indemnities and other amounts due and payable to the
Purchasers and the Agent under the Agreement or this Supplement (including,
without limitation, any Article VII Costs), (ii) the product of (A) all unpaid
fees and expenses due and payable to counsel to, and independent auditors of,
the Company (other than fees and expenses payable on or in connection with the
closing of the issuance of the VFC Certificates) and (B) a fraction, the
numerator of which is the Aggregate Commitment Amount on such Business Day and
the denominator of which is the sum of (x) the Aggregate Invested Amount on
such Business Day (excluding the Series 1997-A Invested Amount and the
Invested Amount in respect of any variable funding certificate of any other
Outstanding Series) and (y) the Aggregate Commitment Amount on such Business
Day plus the aggregate Commitment amount for any variable funding certificate
of any other Outstanding Series and (iii) all unpaid fees and expenses due and
payable to Rating Agencies rating the VFC Certificates; provided, however,
that the amount of Program Costs payable pursuant to Section 3A.06(b)(ii)
shall not exceed $100,000 in the aggregate in any fiscal year of the Servicer
(any amount of the foregoing expenses, indemnities and fees in excess of
$100,000 shall be referred to herein as "Excess Program Costs").
"Purchase Termination Event" shall have the meaning assigned
in Section 7.01 of the Receivables Sale Agreement.
"Purchaser" shall mean each purchaser of a VFC Certificate,
including each Initial Purchaser and each Acquiring Purchaser.
"Rating Agency" shall mean, in the event that Series 1997-A
has been rated, S&P, DCR or any such other rating agency that has rated the
VFC Certificates, as applicable; provided that in the event that Series 1997-A
has not been rated, any reference to "Rating Agency" or the "Rating Agencies"
shall be deemed to have been deleted herefrom and from the Agreement; provided
further that, in the case of the term "Rating Agency Condition", so long as
that Series 1997-A has not been rated, references to such term shall not be
deemed deleted but shall be modified as set forth under the definition of such
term.
"Rating Agency Condition" shall, with respect to any action,
have the meaning assigned in Section 1.01 of the Agreement; provided that in
the event that Series 1997-A has
14
Series 1997-A Supplement
not been rated, any reference to a "Rating Agency Condition" shall be deemed
to be a reference to the prior written consent of the Agent with respect to
such action.
"Record Date" shall mean, with respect to any
Distribution Date, the Business Day immediately preceding such date.
"Register" shall have the meaning assigned in
subsection 11.10(d).
"Scheduled Revolving Termination Date" shall mean the last
day of the Settlement Period ending in October 2003.
"Series 1997-A" shall mean the Series of Investor
Certificates and Subordinated Company Interest, the Principal Terms of which
are set forth in this Supplement.
"Series 1997-A Accrued Interest Sub-subaccount"
shall have the meaning assigned in subsection 3A.02(a).
"Series 1997-A Adjusted Invested Amount" shall mean, as of
any date of determination, (i) the Series 1997-A Invested Amount on such date,
minus (ii) the amount on deposit in the Series 1997-A Principal Collection
Sub- subaccount on such date up to a maximum of the Series 1997-A Invested
Amount.
"Series 1997-A Allocable Charged-Off Amount" shall
mean, with respect to any Special Allocation Settlement
Report Date, the "Allocable Charged-Off Amount", if any,
that has been allocated to Series 1997-A.
"Series 1997-A Allocable Recoveries Amount" shall mean, with
respect to any Special Allocation Settlement Report Date, the "Allocable
Recoveries Amount", if any, that has been allocated to Series 1997-A.
"Series 1997-A Allocated Receivables Amount" shall mean, on
any date of determination, the lower of (i) the Series 1997-A Target
Receivables Amount on such day and (ii) the Aggregate Receivables Amount on
such day times the percentage equivalent of a fraction, the numerator of which
is the Series 1997-A Target Receivables Amount on such day and the denominator
of which is the Aggregate Target Receivables Amount on such day.
"Series 1997-A Amortization Period" shall mean the
period commencing on the Business Day following the earliest
15
Series 1997-A Supplement
to occur of (i) the date on which an Early Amortization Period is declared to
commence or automatically commences, (ii) the Optional Termination Date and
(iii) the Scheduled Revolving Termination Date and ending on the earlier of
(i) the date when the Series 1997-A Invested Amount shall have been reduced to
zero and all accrued interest and other amounts owing on the VFC Certificates
and to the Agent and the Purchasers hereunder shall have been paid and (ii)
the Series 1997-A Termination Date.
"Series 1997-A Collections" shall mean, with respect to any
Business Day, an amount equal to the product of (i) the Series 1997-A Invested
Percentage on such Business Day and (ii) Aggregate Daily Collections.
"Series 1997-A Collection Subaccount" shall have
the meaning assigned in subsection 3A.02(a).
"Series 1997-A Invested Amount" shall mean, as of any date
of determination, the sum of the Series 1997-A Purchaser Invested Amounts of
all Purchasers on such date.
"Series 1997-A Invested Percentage" shall mean, with respect
to any Business Day (i) during the Series 1997- A Revolving Period, the
percentage equivalent of a fraction, the numerator of which is the Series
1997-A Allocated Receivables Amount as of the end of the immediately preceding
Business Day and the denominator of which is the greater of (A) the Aggregate
Receivables Amount as of the end of the immediately preceding Business Day and
(B) the sum of the numerators used to calculate the Invested Percentage for
all Outstanding Series on the Business Day for which such percentage is
determined and (ii) during the Series 1997-A Amortization Period, the
percentage equivalent of a fraction, the numerator of which is the Series
1997-A Allocated Receivables Amount as of the end of the last Business Day of
the Series 1997-A Revolving Period (provided that if during the Series 1997-A
Amortization Period, the amortization periods of all other Outstanding Series
which were outstanding prior to the commencement of the Series 1997-A
Amortization Period commence, then, from and after the date the last of such
series commences its Amortization Period, the numerator shall be the Series
1997- A Allocated Receivables Amount as of the end of the Business Day
preceding such date) and the denominator of which is the greater of (A) the
Aggregate Receivables Amount as of the end of the immediately preceding
Business Day and (B) the sum of the numerators used to calculate the Invested
Percentage for all Outstanding Series on the Business Day for which such
percentage is determined.
16
Series 1997-A Supplement
"Series 1997-A Monthly Interest" shall mean, with respect to
any Accrual Period, the sum of the Daily Interest Expense for each day in such
Accrual Period.
"Series 1997-A Monthly Interest Distribution"
shall have the meaning assigned in subsection 3A.04(a).
"Series 1997-A Monthly Principal Payment" shall
have the meaning assigned in Section 3A.05.
"Series 1997-A Monthly Servicing Fee" shall have
the meaning assigned in Section 6.01.
"Series 1997-A Non-Principal Collection Sub- subaccount"
shall have the meaning assigned in subsection 3A.02(a).
"Series 1997-A Principal Collection Sub- subaccount" shall
have the meaning assigned in subsection 3A.02(a).
"Series 1997-A Purchaser Invested Amount" shall mean, with
respect to any Purchaser on the Issuance Date, an amount equal to the product
of such Purchaser's Commitment Percentage on such date and the Initial Series
1997-A Invested Amount, and with respect to such Purchaser on any date of
determination thereafter, an amount equal to (a) such Purchaser's Series
1997-A Purchaser Invested Amount on the immediately preceding Business Day
(or, with respect to the day as of which such Purchaser becomes a party to
this Supplement, whether by executing a counterpart hereof, a Commitment
Transfer Supplement or otherwise, the portion of the transferor's Series
1997-A Purchaser Invested Amount being purchased, in the case of an Acquiring
Purchaser), plus (b) the amount of any increases in such Purchaser's Series
1997-A Purchaser Invested Amount pursuant to Section 2.05 made on such day,
minus (c) the amount of any distributions to such Purchaser pursuant to
Section 2.06 or subsection 3A.06(c)(i) on such day minus (d) the aggregate
Series 1997-A Allocable Charged-Off Amount applied to such Purchaser on or
prior to such date pursuant to subsection 3A.05(b)(ii) plus (e) (but only to
the extent of any unreimbursed reductions made pursuant to clause (d) above)
the aggregate Series 1997-A Allocable Recoveries Amount applied to such
Purchaser on or prior to such date pursuant to subsection 3A.05(c)(i).
"Series 1997-A Required Reserves Ratio" shall mean, the
greater of (i) the Dilution Reserve Ratio and (ii) the Minimum Ratio.
17
Series 1997-A Supplement
"Series 1997-A Required Subordinated Amount" shall mean, (a)
on any date of determination during the Series 1997-A Revolving Period, an
amount equal to the sum of:
(i) an amount equal to the product of (A) the Series 1997-A
Adjusted Invested Amount on such day (after giving effect to any
increase or decrease thereof on such day) and (B) a fraction, the
numerator of which is the Series 1997-A Required Reserves Ratio and
the denominator of which is one minus the Series 1997-A Required
Reserves Ratio;
(ii) the product of (A) the Series 1997-A Invested Amount on
such day (after giving effect to any increase or decrease thereof on
such day) and (B) a fraction, the numerator of which is the Carrying
Cost Reserve Ratio and the denominator of which is one minus the Series
1997-A Required Reserves Ratio;
(iii) the product of (A) the Principal Amount of Receivables
in the Trust on such day, (B) a fraction, the numerator of which is the
Series 1997-A Invested Amount on such day and the denominator of
which is the Aggregate Invested Amount on such day (after giving
effect to any increase or decrease thereof on such day) and (C) a
fraction, the numerator of which is the Servicing Reserve Ratio and
the denominator of which is one minus the Series 1997-A Required
Reserves Ratio; and
(iv) the product of (A) the Principal Amount of Receivables
from Eligible Obligors which are not Designated Obligors and (B) a
fraction, the numerator of which is 48% and the denominator of which
is one minus the Series 1997-A Required Reserves Ratio.
and (b) on any date of determination during the Series 1997- A Amortization
Period, an amount equal to the Series 1997-A Required Subordinated Amount on
the last Business Day of the Series 1997-A Revolving Period; provided, in each
of the foregoing clauses (a) and (b), that such amount shall be adjusted on
each Special Allocation Settlement Report Date, if any, as set forth in
Section 3A.05(b)(i) and Section 3A.05(c)(ii).
"Series 1997-A Revolving Period" shall mean the period
commencing on the Issuance Date and terminating on the earliest to occur of
the close of business on (i) the date on which an Early Amortization Period is
declared to
18
Series 1997-A Supplement
commence or automatically commences, (ii) the Optional Termination Date and
(iii) the Commitment Termination Date.
"Series 1997-A Subordinated Interest" shall have
the meaning assigned in subsection 2.02(b).
"Series 1997-A Subordinated Interest Amount" shall mean, for
any date of determination, an amount equal to (i) the Series 1997-A Allocated
Receivables Amount minus (ii) the Series 1997-A Adjusted Invested Amount.
"Series 1997-A Subordinated Interest Increase Amount" shall
have the meaning assigned in subsection 2.05(a).
"Series 1997-A Subordinated Interest Reduction Amount" shall
have the meaning assigned in subsection 2.06(b).
"Series 1997-A Target Receivables Amount" shall mean, on any
date of determination, the sum of (i) the Series 1997-A Adjusted Invested
Amount on such day and (ii) the Series 1997-A Required Subordinated Amount for
such day.
"Series 1997-A Termination Date" shall mean the Distribution
Date that occurs in April 2004.
"Servicer Indemnified Person" shall have the
meaning specified in subsection 2.09(b).
"Servicing Reserve Ratio" shall mean, as of any Settlement
Report Date and continuing until (but not including) the next Settlement
Report Date, an amount (expressed as a percentage) equal to (i) the product of
(A) the Servicing Fee Percentage and (B) 2.0 times Days Sales Outstanding as
of such earlier Settlement Report Date divided by (c) 360.
"Transfer Issuance Date" shall mean the date on which a
Commitment Transfer Supplement becomes effective pursuant to the terms of such
Commitment Transfer Supplement.
"Transferee" shall have the meaning assigned in
subsection 11.10(f).
"Trust Accounts" shall have the meaning assigned
in subsection 3A.02(a).
19
Series 1997-A Supplement
"Unallocated Balance" shall mean, as of any Business Day,
the sum of (i) the portion of the Series 1997- A Invested Amount for which
interest is then being calculated by reference to the ABR and (ii) the portion
of the Series 1997-A Invested Amount allocated to any Eurodollar Tranche the
Eurodollar Period or NIBO Period in respect of which expires on such Business
Day.
"VFC Certificate" shall mean a VFC Certificate, Series
1997-A, executed by the Company and authenticated by or on behalf of the
Trustee, substantially in the form of Exhibit A.
"VFC Certificate holders" shall mean the
Purchasers.
"VFC Certificate holders' Interest" shall have the
meaning assigned in subsection 2.02(a).
(b) If any term, definition or provision contained herein
conflicts with or is inconsistent with any term, definition or provision
contained in the Agreement, the terms and provisions of this Supplement shall
govern. All capitalized terms not otherwise defined herein are defined in the
Agreement. All Article, Section, subsection, Exhibit and Schedule references
herein shall mean Article, Section or subsection of or Exhibit or Schedule to
this Supplement, except as otherwise provided herein. Unless otherwise stated
herein, as the context otherwise requires or if such term is otherwise defined
in the Agreement, each capitalized term used or defined herein shall relate
only to the VFC Certificates and the Series 1997-A Subordinated Interest and
to no other Series of Investor Certificates or Subordinated Company Interest
issued by the Trust.
(c) Any reference herein to a Schedule or Exhibit to this
Supplement shall be deemed to be a reference to such Schedule or Exhibit as it
may be amended, modified or supplemented from time to time to the extent that
such Schedule or Exhibit may be amended, modified or supplemented (or any term
or provision of any Transaction Document may be amended that would have the
effect of amending, modifying or supplementing information contained in such
Schedule or Exhibit) in compliance with the terms of the Transaction
Documents.
(d) Any reference in this Supplement to any representation,
warranty or covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
20
Series 1997-A Supplement
repeated on or as of dates following the execution and delivery of this
Supplement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(e) The words "include", "includes" or "including" shall be
interpreted as if followed, in each case, by the phrase "without limitation".
ARTICLE II
Designation of VFC Certificates; Purchase and
Sale of the VFC Certificates
SECTION 2.01. Designation. The Investor
Certificates created and authorized pursuant to the
Agreement and this Supplement shall be designated as the
"VFC Certificates, Series 1997-A."
SECTION 2.02. The VFC Certificates and Series 1997-A
Subordinated Interest. (a) The VFC Certificates shall represent fractional
undivided interests in the Trust Assets, consisting of the right of the VFC
Certificate holders to receive the distributions specified herein out of (i)
the Series 1997-A Invested Percentage (expressed as a decimal) of Collections
received with respect to the Receivables and all other funds on deposit in the
Collection Account and (ii) to the extent such interests appear herein, all
other funds on deposit in the Series 1997-A Collection Subaccount and any
subaccounts thereof (collectively, the "VFC Certificate holders' Interest").
(b) The Company shall retain a fractional undivided interest
in the Trust Assets, consisting of the right of the holder of the Subordinated
Company Interest to receive the distributions specified herein out of (i) the
Series 1997-A Invested Percentage (expressed as a decimal) of Collections
received with respect to the Receivables and all other funds on deposit in the
Collection Account and (ii) to the extent such interests appear herein, all
other funds on deposit in the Series 1997-A Collection Subaccount and any
subaccounts thereof, in each case to the extent not required to be distributed
to or for the benefit of the VFC Certificate holders (the "Series 1997-A
Subordinated Interest"). The Exchangeable Company Interest and any other
Series of Investor Certificates or Subordinated Company Interests outstanding
shall represent the ownership interests in the remainder of the Trust Assets
not allocated
21
Series 1997-A Supplement
pursuant hereto to the VFC Certificate holders' Interest or
the Series 1997-A Subordinated Interest.
(c) The VFC Certificates shall be substantially in the form
of Exhibit A, and shall, upon issue, be executed and delivered by the Company
to the Trustee for authentica tion and redelivery as provided in Section 2.04
hereof and Section 5.02 of the Agreement. The VFC Certificates shall not be
issued in the form of a single global certificate as provided for in Section
5.01 of the Agreement, but shall instead be issued in the form of one or more
definitive certificates, each registered in the name of a Purchaser as the
holder thereof. The Series 1997-A Subordinated Interest shall be
uncertificated.
SECTION 2.03. Purchases of Interests in the VFC Certificates
and the Series 1997-A Subordinated Interest. (a) Initial Purchase. Subject to
the terms and conditions of this Supplement, including delivery of notice in
accordance with Section 2.04, (i) each Initial Purchaser hereby severally
agrees (A) to purchase on the Issuance Date a VFC Certificate in an amount
equal to such Initial Purchaser's Commitment Percentage of the Initial Series
1997-A Invested Amount and (B) to maintain its VFC Certificate, subject to
increase or decrease during the Series 1997-A Revolving Period, in accordance
with the provisions of this Supplement and (ii) the Company hereby agrees (A)
to purchase from the Trust on the Issuance Date the rights as holder of the
Series 1997-A Subordinated Interest in an amount equal to the Initial Series
1997-A Subordinated Interest Amount and (B) to maintain such interest in the
Series 1997-A Subordinated Interest, subject to increase or decrease during
the Series 1997-A Revolving Period, in accordance with the provisions of this
Supplement. Payments by the Initial Purchasers in respect of the VFC
Certificates shall be made in immediately available funds on the Issuance Date
to the Agent for payment to the Trust.
(b) Subsequent Purchases. Subject to the terms and
conditions of this Supplement, each Acquiring Purchaser shall be deemed to
have severally agreed, by its acceptance of its VFC Certificate, to maintain
its VFC Certificate, subject to increase or decrease during the Series 1997-A
Revolving Period, in accordance with the provisions of this Supplement.
(c) Maximum Series 1997-A Purchaser Invested Amount.
Notwithstanding anything to the contrary contained in this Supplement, at no
time shall the Series 1997-A
22
Series 1997-A Supplement
Purchaser Invested Amount (calculated without regard to clauses (d) and (e) of
the definition thereof) of any Purchaser exceed such Purchaser's Commitment at
such time.
SECTION 2.04. Delivery. On the Issuance Date, the Company
shall sign on behalf of the Trust and shall direct the Trustee in writing
pursuant to Section 5.02 of the Agreement to duly authenticate, and the
Trustee, upon receiving such direction, shall so authenticate the VFC
Certificates in such names and such denominations and deliver such VFC
Certificates to the Initial Purchasers in accordance with such written
directions. The VFC Certificates shall be issued in minimum denominations of
$5,000,000 and integral multiples of $1,000,000 in excess thereof; provided
that notwithstanding the foregoing one VFC Certificate may be issued in
non-integral multiples of $1,000,000. The Trustee shall mark on its books the
actual Series 1997-A Invested Amount and Series 1997-A Subordinated Interest
Amount outstanding on any date of determination, which, absent manifest error,
shall constitute prima facie evidence of the outstanding Series 1997-A
Invested Amount and Series 1997-A Subordinated Interest Amount from time to
time.
SECTION 2.05. Procedure for Initial Issuance and
for Increasing the Series 1997-A Invested Amount. (a) Subject to subsection
2.05(b), on any Business Day during the Commitment Period, each Purchaser agrees
that the Series 1997-A Invested Amount may be increased by increasing each
Purchaser's Series 1997-A Purchaser Invested Amount (an "Increase"), up to an
amount not exceeding each Purchaser's Commitment, upon the request of the
Servicer or the Company on behalf of the Trust (each date on which an increase
in the Series 1997-A Invested Amount occurs hereunder being herein referred to
as the "Increase Date" applicable to such Increase); provided, however, that the
Servicer or the Company, as the case may be, shall have given the Agent
irrevocable written notice (effective upon receipt), substantially in the form
of Exhibit F hereto, of such request no later than (i) if the Initial Series
1997-A Invested Amount or Increase Amount is to be priced solely with reference
to the ABR, 1:00 p.m., New York City time, on the Issuance Date or such Increase
Date, as the case may be, or (ii) if all or a portion of the Initial Series
1997-A Invested Amount or Increase Amount is to be allocated to a Eurodollar
Tranche, 1:00 p.m., New York City time, three Business Days prior to the
Issuance Date or such Increase Date, as the case may be; provided further that
the provisions of this subsection shall not restrict the allocations of
Collections pursuant to Article III. Such
23
Series 1997-A Supplement
notice shall state (x) the Issuance Date or the Increase Date, as the case may
be; (y) the Initial Series 1997-A Invested Amount or the proposed amount of
such Increase (the "Increase Amount"), as the case may be; and (z) what
portions thereof will be allocated to a Eurodollar Tranche and the Floating
Tranche. No Purchaser shall be obligated to fund any such Increase, unless
concurrently with any such Increase in the Series 1997-A Invested Amount, the
Series 1997-A Subordinated Interest Amount shall be increased by an amount
(the "Series 1997-A Subordinated Interest Increase Amount") such that after
giving effect to such increase, the Series 1997-A Adjusted Invested Amount
plus the Series 1997-A Subordinated Interest Amount equals the Series 1997-A
Target Receivables Amount.
(b) The Purchasers shall not be required to make the initial
purchase of VFC Certificates on the Issuance Date or to increase their
respective Series 1997-A Invested Amounts on any Increase Date hereunder unless:
(i) the related aggregate initial purchase amount or
Increase Amount is equal to (A) in the case of a Floating Tranche,
$100,000 or an integral multiple of $100,000 in excess thereof and
(B) in the case of a Eurodollar Tranche, $500,000 or an integral
multiple of $500,000 in excess thereof;
(ii) after giving effect to the initial purchase amount or
Increase Amount, (A) the Series 1997-A Invested Amount (calculated
without regard to clauses (d) and (e) of the definition of Series
1997-A Purchaser Invested Amount) would not exceed the Maximum
Commitment Amount on the Issuance Date or such Increase Date, as the
case may be, and (B) the Series 1997-A Allocated Receivables Amount
would not be less than the Series 1997-A Target Receivables Amount on
the Issuance Date or such Increase Date, as the case may be; and
(iii) no Early Amortization Event or Potential Early
Amortization Event shall have occurred and be continuing.
(c) After receipt by the Agent of the notice required by
subsection 2.05(a) from the Servicer or the Company on behalf of the Trust,
the Agent shall, so long as the conditions set forth in subsections 2.05(a)
and (b) are satisfied, promptly provide telephonic notice to each Purchaser of
the Increase Date and of the portion of the Increase Amount allocable to such
Purchaser (which shall equal such Purchaser's Commitment Percentage of the
Increase
24
Series 1997-A Supplement
Amount). The Servicer shall promptly notify the Company of the Increase Date
and the amount of the Series 1997-A Subordinated Interest Increase Amount.
Each Purchaser agrees to pay in immediately available funds such Purchaser's
Commitment Percentage of each Increase on the related Increase Date to the
Agent for payment to the Trust.
SECTION 2.06. Procedure for Decreasing the Series 1997-A
Invested Amount; Optional Termination. (a) On any Business Day during the
Series 1997-A Revolving Period or the Series 1997-A Amortization Period
(except for Distribution Dates during the Series 1997-A Amortization Period
(which shall be governed by subsection 3A.06(c))), upon the written request of
the Servicer or the Company on behalf of the Trust, the portion of the Series
1997-A Invested Amount not allocated to a Eurodollar Tranche may be reduced (a
"Decrease") by the distribution by the Trustee to the Agent for the pro rata
benefit of the Purchasers in accordance with their Commitment Percentages of
some or all of the funds on deposit in the Series 1997-A Principal Collection
Sub-subaccount on such day; provided that the Servicer shall have given the
Agent and the Trustee irrevocable written notice (effective upon receipt),
prior to 1:00 p.m., New York City time, on the Business Day of such Decrease
and which notice shall state the amount of such Decrease; provided further
that such Decrease shall be in an amount equal to $100,000 and integral
multiples of $100,000 in excess thereof; provided further, however, that no
prepayment of any Eurodollar Tranche prior to the termination of a Eurodollar
Period or NIBO Period may occur unless, concurrently with such prepayment, the
Company shall have paid to the Purchasers any amounts due and payable pursuant
to Section 7.04.
(b) Simultaneously with any such Decrease during the Series
1997-A Revolving Period, the Series 1997-A Subordinated Interest Amount shall
be reduced by an amount (the "Series 1997-A Subordinated Interest Reduction
Amount") such that the Series 1997-A Subordinated Interest Amount shall equal
the Series 1997-A Required Subordinated Amount after giving effect to such
Decrease. During the Series 1997-A Revolving Period, after the distribution
described in subsection (a) above has been made, and the Series 1997-A
Subordinated Interest Amount shall have been reduced by the Series 1997-A
Subordinated Interest Reduction Amount, a distribution shall be made to the
holder of the Series 1997-A Subordinated Interest out of remaining funds on
deposit in the Series 1997-A Principal Collection Sub- subaccount in an amount
equal to the lesser of (x) the Series 1997-A Subordinated Interest Reduction
Amount and
25
Series 1997-A Supplement
(y) the amount of such remaining funds on deposit in the Series 1997-A
Principal Collection Sub-subaccount.
(c) Any reduction in the Series 1997-A Invested Amount on
any Business Day shall be allocated first to reduce the Available Pricing
Amount.
(d) (i) On any Business Day to occur after the Issuance Date
and prior to the occurrence of the Scheduled Revolving Termination Date, an
Early Amortization Event or Potential Early Amortization Event, the Company
shall have the right to deliver an irrevocable notice (an "Optional
Termination Notice") to the Trustee and the Servicer in which the Company
declares that the Series 1997-A Revolving Period shall terminate on the date
(the "Optional Termination Date") set forth in such notice (which date, in any
event, shall not be less than 10 days from the date on which such notice is
delivered).
(ii) From and after the Optional Termination Date, the
Series 1997-A Amortization Period shall commence for all purposes under this
Agreement and the other Transaction Documents. The Trustee shall give prompt
written notice of its receipt of an Optional Termination Notice to the
Purchasers and each Rating Agency.
SECTION 2.07. Reductions of the Commitments. (a) On any
Business Day during the Series 1997-A Revolving Period, the Company, on behalf
of the Trust, may, upon three Business Days' prior written notice to the Agent
(effective upon receipt), with copies to the Servicer and the Trustee, reduce
or terminate the Commitments (a "Commitment Reduction") in an aggregate amount
equal to $5,000,000 or a whole multiple of $5,000,000 in excess thereof;
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any reduction in the Series 1997-A Invested
Amount (calculated without regard to clauses (d) and (e) of the definition of
Series 1997-A Purchaser Invested Amount) on such date, the Series 1997-A
Invested Amount would exceed the Aggregate Commitment Amount then in effect.
Each Purchaser's Commitment shall be reduced by such Purchaser's Commitment
Percentage of the amount of such Commitment Reduction.
(b) Once reduced, the Commitments may not be subsequently
reinstated. Upon effectiveness of any such reduction, the Agent shall prepare
a revised Schedule 1 to reflect the reduced Commitment of each Purchaser and
Schedule 1 of this Supplement shall be deemed to be
26
Series 1997-A Supplement
automatically superseded by such revised Schedule 1. The Agent shall
distribute such revised Schedule 1 to the Company, the Servicer, the Trustee
and each Purchaser.
SECTION 2.08. Interest; Commitment Fee. (a) Interest shall
be payable on the VFC Certificates on each Distribution Date pursuant to
subsection 3A.06(a).
(b) The Trustee (acting at and in accordance with the
written direction of the Servicer upon which the Trustee may conclusively
rely) shall pay to the Agent from amounts deposited by the Servicer into the
Collection Account, for the pro rata account of the Purchasers in accordance
with their Commitment Percentages, on each Distribution Date, a commitment fee
(which the Servicer shall specify in such written direction) with respect to
each Accrual Period or portion thereof ending on such date (the "Commitment
Fee") during the Series 1997-A Revolving Period at a rate equal to (i) at any
time prior to the Margin Increase Date, 0.25% per annum and (ii) from and
after the Margin Increase Date, 0.375% per annum, in each case of the average
daily excess of the Aggregate Commitment Amount over the average Series 1997-A
Invested Amount (based on the Series 1997-A Purchaser Invested Amounts
calculated without regard to clauses (d) and (e) of the definition thereof)
during such Accrual Period; provided that, for purposes of calculating clause
(b) of the Accrued Expense Amount on any date of determination and clause
(a)(i) of the Accrued Expense Adjustment for purposes of clause (A) of the
proviso to subsection 3A.03(a)(i) of this Supplement, as they relate to the
Commitment Fee, it will be assumed that the average Series 1997-A Invested
Amount during the relevant Accrual Period is equal to zero. The Commitment Fee
shall be payable (a) monthly in arrears on each Distribution Date, (b) on the
Commitment Termination Date and (c) on the Optional Termination Date. To the
extent that funds on deposit in the Series 1997-A Accrued Interest
Sub-subaccount and the Series 1997-A Non-Principal Collection Sub- subaccount
at any such date are insufficient to pay the Commitment Fee due on such date,
the Trustee shall so notify the Company and the Company shall immediately pay
the Agent the amount of any such deficiency. The Trustee shall not be liable
for the payment of the Commitment Fee from its own funds.
(c) Calculations of per annum rates and fees under this
Supplement shall be made on the basis of a 365- day year with respect to
Commitment Fees, other fees, and, except with respect to Eurodollar Tranches,
interest rates. Each determination of One-Month LIBOR or the NIBO Rate by
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Series 1997-A Supplement
the Agent shall be conclusive and binding upon each of the parties hereto in
the absence of manifest error.
SECTION 2.09. Indemnification by the Company and the
Servicer. (a) The Company agrees to indemnify and hold harmless the Agent,
each Purchaser and each of their respective officers, directors, agents and
employees (each, a "Company Indemnified Person") from and against any loss,
liability, expense, damage or injury (a "Claim") suffered or sustained by such
Company Indemnified Person by reason of (i) any acts, omissions or alleged
acts or omissions arising out of, or relating to, activities of the Company
pursuant to any Pooling and Servicing Agreement or the other Transaction
Documents to which it is a party or (ii) in the case of a Claim brought by a
third party, (x) a breach of any representation or warranty made or deemed
made by the Company (or any of its officers) in any Transaction Document,
except to the extent that such Company Indemnified Person would be indemnified
and held harmless by an adjustment payment in respect of Ineligible
Receivables pursuant to Section 2.05 of the Agreement or (y) a failure by the
Company to comply with any applicable law or regulation or to perform its
covenants, agreements, duties or obligations required to be performed or
observed by it in accordance with the provisions of any Pooling and Servicing
Agreement or the other Transaction Documents, in any such case including any
judgment, award settlement, reasonable attorneys' fees and other reasonable
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim, except to the extent such loss,
liability, expense, damage or injury resulted from the gross negligence, bad
faith or wilful misconduct of such Company Indemnified Person or its officers,
directors, agents, principals, employees or employers; provided, however, that
any payments made by the Company pursuant to this subsection shall be Company
Subordinated Obligations.
(b) The Servicer agrees to indemnify and hold harmless the
Agent, each Purchaser and each of their respective officers, directors, agents
and employees (each, a "Servicer Indemnified Person") from and against any
Claim by reason of (i) any acts, omissions or alleged acts or omissions
arising out of, or relating to, activities of the Servicer pursuant to any
Pooling and Servicing Agreement to which it is a party or (ii) in the case of
a Claim brought by a third party, (x) a breach of any representation or
warranty made or deemed made by the Servicer (or any of its respective
officers) in any Pooling and Servicing Agreement or (y) a failure by the
Servicer to comply with any applicable law or regulation or to perform its
covenants,
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Series 1997-A Supplement
agreements, duties or obligations required to be performed or observed by it
in accordance with the provisions of any Pooling and Servicing Agreement, in
any such case including but not limited to any judgment, award, settlement,
reasonable attorneys fees and other reasonable costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim, except to the extent such loss, liability, expense, damage or injury
resulted from the gross negligence, bad faith or wilful misconduct of such
Servicer Indemnified Person or its officers, directors, agents, principals,
employees or employers, provided that the Servicer shall not indemnify any
Servicer Indemnified Person for any liability, cost or expense of such
Servicer Indemnified Person arising solely from a default by an Obligor with
respect to any Receivable (except that indemnification shall be made to the
extent that such default arises out of its failure to perform its duties or
obligations under this Agreement).
ARTICLE III
Article III of the Agreement
SECTION 3.01 of the Agreement and each other section of
Article III of the Agreement relating to another Series shall be read in its
entirety as provided in the Agreement. Article III of the Agreement (except
for Section 3.01 thereof and any portion thereof relating to another Series)
shall read in its entirety as follows and shall be exclusively applicable to
Series 1997-A:
SECTION 3A.02. Establishment of Trust Accounts. (a) The
Trustee shall cause to be established and maintained in the name of the
Trustee, on behalf of the Trust, (i) for the benefit of the Purchasers and
(ii) in the case of clauses (A) and (B) below, for the benefit (subject to the
prior and senior interest of the Purchasers) of the holder of the Series
1997-A Subordinated Interest, (A) a subaccount of the Collection Account (the
"Series 1997-A Collection Subaccount"), which subaccount is the Series
Collection Subaccount with respect to Series 1997-A; (B) two subaccounts of
the Series 1997-A Collection Subaccount: (1) the Series 1997-A Principal
Collection Sub- subaccount and (2) the Series 1997-A Non-Principal Collection
Sub-subaccount (respectively, the "Series 1997-A Principal Collection
Sub-subaccount" and the "Series 1997-A Non-Principal Collection
Sub-subaccount"), and (C) a subaccount of the Series 1997-A Non-Principal
Collection Sub-subaccount (the "Series 1997-A Accrued Interest Sub-
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Series 1997-A Supplement
subaccount"; all accounts established pursuant to this subsection 3A.02(a) and
listed on Schedule 2, collectively, the "Trust Accounts"), each Trust Account
to bear a designation indicating that the funds deposited therein are held for
the benefit of the Persons (and, for each such Person, to the extent) set
forth in clauses (i) and (ii) above. The Trustee, on behalf of the Holders,
shall possess all right, title and interest in all funds from time to time on
deposit in, and all Eligible Investments credited to, the Trust Accounts and
in all proceeds thereof. The Trust Accounts shall be under the sole dominion
and control of the Trustee for the exclusive benefit of the Persons (and, for
each such Person, to the extent) set forth in clauses (i) and (ii) above. In
any case that the Company has not provided applicable written direction as to
Eligible Investments to the Trustee, the Trustee shall invest in demand
deposits or money market funds that constitute Eligible Investments.
(b) All Eligible Investments in the Trust Accounts shall be
held by the Trustee, on behalf of the Holders, for the benefit of the
Purchasers and, subject to the prior interest of the Purchasers, of the holder
of the Series 1997-A Subordinated Interest; provided, however, that funds on
deposit in a Trust Account that is a Sub-subaccount of the Series 1997-A
Collection Subaccount shall, at the direction of the Company, be invested
together with funds held in other Sub-subaccounts of the Collection Account.
After giving effect to any distribution to the Company pursuant to subsection
3A.03(b)(i), amounts on deposit and available for investment in the Series
1997-A Principal Collection Sub-subaccount shall be invested by the Trustee at
the written direction of the Company in Eligible Investments that mature, or
that are payable or redeemable upon demand of the holder thereof, (i) in the
case of any such investment made during the Series 1997-A Revolving Period, on
or prior to the next Business Day and (ii) in the case of any such investment
made during the Series 1997-A Amortization Period, on or prior to the Business
Day immediately preceding the next Distribution Date. Amounts on deposit and
available for investment in the Series 1997-A Non-Principal Collection
Sub-subaccount and the Series 1997- A Accrued Interest Sub-subaccount shall be
invested by the Trustee at the written direction of the Company in Eligible
Investments that mature, or that are payable or redeemable upon demand of the
holder thereof, on or prior to the Business Day immediately preceding the
subsequent Distribution Date. As of the Business Day immediately preceding
such subsequent Distribution Date, all interest and other investment earnings
(net of losses and investment
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Series 1997-A Supplement
expenses) on funds deposited in the Series 1997-A Accrued Interest
Sub-subaccount shall be deposited in the Series 1997-A Non-Principal
Collection Sub-subaccount. All interest and investment earnings (net of losses
and investment expenses) on funds deposited in the Series 1997-A Principal
Collection Sub-subaccount shall be deposited in the Series 1997-A
Non-Principal Collection Sub-subaccount.
SECTION 3A.03. Daily Allocations. (a) The portion of the
Aggregate Daily Collections allocated to Series 1997-A pursuant to Article III
of the Agreement shall be allocated and distributed as set forth in this
Article III by the Trustee based solely on the information provided it by the
Servicer in the Daily Report (upon which the Trustee may conclusively rely):
(i) on each Business Day, an amount equal to the Accrued
Expense Amount for such day (or, during the Series 1997-A Revolving
Period, such greater amount as the Company may request in writing)
shall be transferred from the Series 1997-A Collection Subaccount to
the Series 1997-A Non-Principal Collection Sub-subaccount; provided,
that (A) on the tenth Business Day of each Accrual Period (and each
Business Day thereafter, if necessary, until the full amount of any
positive Accrued Expense Adjustment is transferred), (B) on the day
of any Increase occurring after the tenth Business Day of the
applicable Accrual Period (and each Business Day thereafter, if
necessary, until the full amount of any positive Accrued Expense
Adjustment is transferred), (C) on the day of any Decrease occurring
after the tenth Business Day of the applicable Accrual Period and (D)
on the last Business Day of each Accrual Period, an amount equal to
the Accrued Expense Adjustment shall, if such adjustment is a
positive amount, be transferred from the Series 1997- A Collection
Subaccount to the Series 1997-A Non- Principal Collection
Sub-subaccount or, if such adjustment is a negative amount, be
transferred from the Series 1997-A Non-Principal Collection Sub-
subaccount to the Series 1997-A Collection Subaccount (or deducted
from the transfer in respect of the Accrued Expense Amount for such
day); and
(ii) on each Business Day (including Distribution Dates),
following the transfers pursuant to clause (i) above, any remaining
funds on deposit in the Series 1997-A Collection Subaccount shall be
transferred by the Trustee to the Series 1997-A
Principal Collection Sub-subaccount.
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Series 1997-A Supplement
(b) (i) On each Business Day during the Series 1997-A
Revolving Period (including Distribution Dates), after giving effect to (x)
all allocations of Aggregate Daily Collections referred to in subpara graphs
(a)(i) and (a)(ii) on such Business Day and (y) any deposit resulting from an
Increase, if any, pursuant to Subsection 2.05(c) on such Business Day, amounts
on deposit in the Series 1997-A Principal Collection Sub-subaccount shall be
distributed by the Trustee, based solely on the information provided to the
Trustee by the Servicer in the Daily Report (upon which the Trustee may
conclusively rely), (A) first, to pay Excess Program Costs and (B) second, to
the Company (but only to the extent that the Trustee has received a Daily
Report which reflects the receipt of the Collections on deposit therein) in
accordance with directions contained in the Daily Report or to such accounts
or such persons as the Company may direct in writing (which directions may
consist of standing instructions provided by the Company that shall remain in
effect until changed by the Company in writing); provided that such
distribution, whether under clause (A) or (B), shall be made only if no Early
Amortization Event set forth in Section 7.01 of the Agreement or subsections
(a), (d) (but only with respect to a Servicer Default set forth in subsection
6.01(e) of the Servicing Agreement), (g), (j) or (k) of Section 5.01 of this
Supplement or Potential Early Amortization Event relating to any such Early
Amortization Event (other than an event set forth in clause (i) or (ii) of
Section 7.01(a) of the Pooling Agreement has occurred and is continuing and
only to the extent that if, after giving effect to such distribution, the
Series 1997-A Target Receivables Amount would not exceed the Series 1997-A
Allocated Receivables Amount; provided further that if the Company or the
Servicer, on behalf of the Company, shall have given the Agent and the Trustee
irrevocable written notice (effective upon receipt) at least one Business Day
prior to such day (or, in the case of the Floating Tranche, notice may be
given on such day), the Company or the Servicer may instruct the Trustee in
writing (specifying the related amount) to withdraw all or a portion of such
amounts on deposit in the Series 1997-A Principal Collection Sub-subaccount
and apply such withdrawn amounts toward the reduction of the Series 1997-A
Invested Amount and the Series 1997-A Subordinated Interest Amount in
accordance with Section 2.06. Amounts distributed to the Company hereunder
shall be deemed to be paid first from Collections received directly by the
Servicer and second from Collections received in the Lockboxes.
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Series 1997-A Supplement
(ii) During the Series 1997-A Amortization Period, amounts
on deposit in the Series 1997-A Principal Collection Sub-subaccount on each
Distribution Date shall be distributed on such Distribution Date in accordance
with subsection 3A.06(c). No amounts on deposit in the Series 1997-A Principal
Collection Sub-subaccount shall be distributed by the Trustee to the Company
or the holder of the Series 1997-A Subordinated Interest during the Series
1997-A Amortization Period.
(c) On each Business Day, an amount equal to the Daily
Interest Deposit for such day shall be transferred by the Trustee, based
solely on the information provided to the Trustee by the Servicer in the Daily
Report (upon which the Trustee may conclusively rely), from the Series 1997-A
Non- Principal Collection Sub-subaccount to the Series 1997-A Accrued Interest
Sub-subaccount provided, that, on each Business Day that a transfer of funds
is required to be made in respect of an Accrued Expense Adjustment pursuant to
the proviso contained in subsection 3A.03(a)(i), an amount equal to the Daily
Interest Adjustment shall, if such adjustment is a positive amount, be
transferred from the Series 1997-A Non-Principal Collection Sub-subaccount to
the Series 1997-A Accrued Interest Sub-subaccount or, if such adjustment is a
negative amount, be transferred from the Series 1997-A Accrued Interest
Sub-subaccount to the Series 1997-A Non- Principal Collection Sub-subaccount
(or deducted from the transfer in respect of the Daily Interest Deposit for
such day).
(d) The allocations to be made pursuant to this Section
3A.03 are subject to the provisions of Sections 2.05, 2.06, 7.02, 9.01 and
9.04 of the Agreement.
SECTION 3A.04. Determination of Interest. (a) (i) The amount
of interest (as reported in writing by the Servicer to the Trustee)
distributable with respect to the VFC Certificates ("Series 1997-A Monthly
Interest Distribution") on each Distribution Date shall be the aggregate
amount of Daily Interest Expense accrued during the immediately preceding
Accrual Period.
(ii) Following any change in the amount of any Eurodollar
Tranche or Floating Tranche during an Accrual Period, the Series 1997-A
Monthly Interest shall be calculated by the Servicer with respect to such
changed amount for the number of days in the Accrual Period during which such
changed amount is outstanding and shall provide written notification to the
Trustee of such calculation.
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Series 1997-A Supplement
(iii) If the Certificate Rate changes during any Accrual
Period, the Servicer shall amend the Monthly Settlement Statement to reflect
the adjustment in the Series 1997-A Monthly Interest for such Accrual Period
caused by such change and any consequent adjustments and the Servicer shall
also provide written notification to the Trustee of any such change in the
Certificate Rate. Any amendment to the Monthly Settlement Statement pursuant
to this subsection 3A.04(a)(iii) shall be completed by 1:00 p.m. on the day
preceding the next Settlement Report Date.
(b) On each Distribution Date, the Servicer shall determine
the excess, if any (the "Interest Shortfall"), of (i) the aggregate Series
1997-A Monthly Interest Distribu tion for the immediately preceding Accrual
Period over (ii) the amount that will be available to be distributed to the
Purchasers on such Distribution Date in respect thereof pursuant to this
Supplement. If the Interest Shortfall with respect to any Distribution Date is
greater than zero, an additional amount ("Additional Interest") equal to the
product of (A) the number of days until such Interest Shortfall shall be
repaid divided by 365, (B) the ABR and (C) such Interest Shortfall (or the
portion thereof that has not been paid to the Purchasers) shall be payable as
provided herein with respect to the VFC Certificates on each Distribution Date
following such Distribution Date to but excluding the Distribution Date on
which such Interest Shortfall is paid to the VFC Certificateholders.
(c) On any Business Day, the Company may, subject to
subsection 3A.04(e), elect to allocate all or any portion of the Available
Pricing Amount to one or more Eurodollar Tranches with Eurodollar Periods or
NIBO Periods commencing on such Business Day by giving the Agent irrevocable
written or telephonic (confirmed in writing) notice thereof, which notice must
be received by the Agent prior to 1:00 p.m., New York City time, three
Business Days prior to such Business Day. Such notice shall specify (i) the
applicable Business Day, (ii) the Eurodollar Period or NIBO Period for each
Eurodollar Tranche to which a portion of the Available Pricing Amount is to be
allocated and (iii) the portion of the Available Pricing Amount being
allocated to each such Eurodollar Tranche. Promptly upon receipt of each such
notice the Agent shall notify each Purchaser of the contents thereof. If the
Agent shall not have received timely notice as aforesaid with respect to all
or any portion of the Available Pricing Amount, the Monthly Interest Payment
on such amount shall be calculated by reference to the ABR.
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Series 1997-A Supplement
(d) Any reduction in the Series 1997-A Invested Amount on
any Business Day shall be allocated in the following order of priority:
first, to reduce the Unallocated Balance, as
appropriate; and
second, to reduce the portion of the Series 1997-A Invested
Amount allocated to Eurodollar Tranches in such order as the Company
may select in order to minimize costs payable pursuant to Section 7.04.
(e) Notwithstanding anything to the contrary contained in
this Section 3A.04, (i) the portion of the Series 1997-A Invested Amount
allocable to each Eurodollar Tranche must be in an amount equal to $500,000 or
an integral multiple of $500,000 in excess thereof; (ii) no more than five
Eurodollar Tranches shall be outstanding at any one time; (iii) after the
occurrence and during the continuance of any Early Amortization Event or
Potential Early Amortization Event relating to an Early Amortization Event set
forth in subsections (a), (d) (but only with respect to a Servicer Default set
forth in sub section 6.01(e) of the Servicing Agreement), (e), (g) or (j) of
Section 5.01 of this Supplement, the Company, may not elect to allocate any
portion of the Available Pricing Amount to a Eurodollar Tranche; and (iv)
after the end of the Series 1997-A Revolving Period, the Company may not
select any Eurodollar Period or NIBO Period that does not end on or prior to
the next succeeding Distribution Date.
SECTION 3A.05. Determination of Series 1997-A Monthly
Principal. (a) Payments of Series 1997-A Principal. The amount (the "Series
1997-A Monthly Principal Payment") distributable from the Series 1997-A
Principal Collection Sub-subaccount on each Distribution Date during the
Series 1997-A Amortization Period shall be equal to the amount on deposit in
such account on the immediately preceding Settlement Report Date; provided,
however, that the Series 1997-A Monthly Principal Payment on any Distribution
Date shall not exceed the Series 1997-A Invested Amount on such Distribution
Date after giving effect to the reductions and increases pursuant to
paragraphs (b) and (c) below. Further, on any other Business Day during the
Series 1997-A Amortization Period, funds may be distributed from the Series
1997-A Principal Collection Sub-subaccount to the Purchasers in accordance
with Section 2.06 of this Supplement.
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Series 1997-A Supplement
(b) Reductions to Series 1997-A Principal. If, on any
Special Allocation Settlement Report Date, the Series 1997-A Allocable
Charged-Off Amount is greater than zero for the related Settlement Period, the
Trustee shall (in accordance with the written directions of the Servicer upon
which the Trustee may conclusively rely) make the following applications of such
amounts in the following order of priority:
(i) the Series 1997-A Required Subordinated Amount shall be
reduced (but not below zero) by an amount equal to the Series 1997-A
Allocable Charged-Off Amount (which shall also be reduced by the
amount so applied);
(ii) then, to the extent that the Series 1997-A Allocable
Charged-Off Amount is greater than zero following the application in
clause (i) above, the Series 1997-A Invested Amount shall be reduced
(but not below zero) by such remaining Series 1997-A Allocable
Charged-Off Amount (which shall also be reduced by the amount so
applied).
(c) Increases to Series 1997-A Principal. If, on any
Special Allocation Settlement Report Date, the Series 1997-A Allocable
Recoveries Amount is greater than zero for the related Settlement Period, the
Trustee shall (in accordance with written directions from the Servicer upon
which the Trustee may conclusively rely) make the following applications (after
giving effect to the applications in paragraph (b) of such amount in the
following order of priority):
(i) the Series 1997-A Invested Amount shall be increased
(but only to the extent of any previous reductions of the Series
1997-A Invested Amount pursuant to subsection 3A.05(b)(ii)) by the
amount of the Series 1997-A Allocable Recoveries Amount (which shall
also be reduced by the amount so applied);
(ii) then, to the extent that the Series 1997-A Allocable
Recoveries Amount is greater than zero following the applications in
clause (i) above, the Series 1997-A Required Subordinated Amount
shall be increased (but only to the extent of any previous reductions
of the Series 1997-A Required Subordinated Amount pursuant to
subsection 3A.05(b)(i)) by such remaining Series 1997-A Allocable
Recoveries Amount (which shall also be reduced by the amount so
applied).
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Series 1997-A Supplement
(d) Servicer Determination. With respect to any distribution
or allocations required in this Section 3A.05, the related amount shall be
determined by the Servicer and promptly provided in writing by the Servicer to
the Trustee.
SECTION 3A.06. Applications. (a) The Trustee shall
distribute, (i) with respect to Floating Tranches and Eurodollar Tranches with
Eurodollar Periods, based solely on the information provided to the Trustee by
the Servicer in the Monthly Settlement Statement (upon which the Trustee may
conclusively rely) and (ii) with respect to Eurodollar Tranches with NIBO
Periods, based solely on the information provided to the Trustee by the
Servicer in the Daily Reports issued during such NIBO Period (upon which the
Trustee may conclusively rely), on each Distribution Date, from amounts on
deposit in the Series 1997-A Accrued Interest Sub- subaccount, an amount equal
to the Series 1997-A Monthly Interest Distribution payable on such
Distribution Date (such amount, the "Monthly Interest Payment"), plus the
amount of any Monthly Interest Payment previously due but not distributed to
the Purchasers on a prior Distribution Date, plus the amount of any Additional
Interest for such Distribution Date and any Additional Interest previously due
but not distributed to the Purchasers on a prior Distribution Date, to the
Purchasers.
(b) On each Distribution Date, the Trustee shall, based
solely on the information provided to the Trustee by the Servicer in the Daily
Report (upon which the Trustee may conclusively rely), apply funds on deposit
in the Series 1997-A Non-Principal Collection Sub-subaccount in the following
order of priority to the extent funds are available:
(i) an amount equal to the Series 1997-A Monthly Servicing
Fee for the Accrual Period ending on such Distribution Date shall be
withdrawn from the Series 1997-A Non-Principal Collection
Sub-subaccount by the Trustee and paid to the Servicer (less any
amounts payable to the Trustee pursuant to Section 8.05 of the
Agreement which shall be paid to the Trustee); and
(ii) an amount equal to any Program Costs due and payable
shall be withdrawn from the Series 1997-A Non- Principal Collection
Sub-subaccount by the Trustee and paid to the Persons owed such
amounts.
Any remaining amounts on deposit in the Series 1997-A
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Series 1997-A Supplement
Non-Principal Collection Sub-subaccount (in excess of the Accrued Expense
Amount as of such day) not allocated pursuant to clauses (i) and (ii) above
shall be paid to the holder of the Series 1997-A Subordinated Interest;
provided, however, that during the Series 1997-A Amortization Period, such
remaining amounts shall be deposited in the Series 1997-A Principal Collection
Sub-subaccount for distribution in accordance with subsection 3A.06(c).
(c) During the Series 1997-A Amortization Period, the
Trustee shall, based solely on the information provided to the Trustee by the
Servicer in the Daily Report (upon which the Trustee may conclusively rely),
apply, on each Distribution Date, amounts on deposit in the Series 1997-A
Principal Collection Sub-subaccount in the following order of priority:
(i) if any amounts are owed to the Trustee or any other
Person, on account of Servicing Fees incurred in respect of the
performance of its responsibilities as Successor Servicer, an amount
equal to the product of (a) the amount so owed to such Successor
Servicer and (b) a fraction, the numerator of which shall be equal to
the Series 1997-A Invested Amount as of the end of the immediately
preceding Settlement Period and the denominator of which shall be
equal to the Aggregate Invested Amount as of the end of the
immediately preceding Settlement Period shall be transferred from the
Series 1997-A Principal Collection Sub-subaccount to the Trustee or
such other Person;
(ii) following the repayment in full of all amounts set
forth in clause (i) above, an amount equal to the Series 1997-A
Monthly Principal Payment for such Distribution Date shall be
distributed from the Series 1997-A Principal Collection
Sub-subaccount to the Purchasers in reduction of the Series 1997-A
Invested Amount;
(iii) if, following the repayment in full of all amounts set
forth in clauses (i) and (ii) above, any amounts are owed to the
Trustee or any other Person, on account of its fees, expenses and
disbursements incurred in respect of the performance of its
responsibilities hereunder (other than pursuant to clause (i) above
in the capacity as Successor Servicer), such amounts shall be
transferred from the Series 1997-A Principal Collection
Sub-subaccount and paid to the Trustee or such other Person; and
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Series 1997-A Supplement
(iv) following the repayment in full of all amounts set
forth in clauses (i) through (iii) above, the remaining amount on
deposit in the Series 1997-A Principal Collection Sub-subaccount on
such Distribution Date, if any, shall be distributed to the holder of
the Series 1997-A Subordinated Interest.
ARTICLE IV
Distributions and Reports
Article IV of the Agreement (except for any portion thereof
relating to another Series) shall read in its entirety as follows and the
following shall be exclusively applicable to the VFC Certificates issued
pursuant to this Supplement:
SECTION 4A.01. Distributions. (a) On each Distribution Date,
the Trustee shall distribute to each Purchaser from the account indicated in
Article III an amount equal to the product of (i) the amount to be distributed
to the Purchasers pursuant to Article III and (ii) such Purchaser's Commitment
Percentage.
(b) All allocations and distributions hereunder shall be in
accordance with the Daily Report and the Monthly Settlement Statement and
shall be made in accordance with the provisions of Section 11.04 hereof and
subject to Section 3.01(h) of the Agreement.
SECTION 4A.02. Daily Reports. The Servicer shall provide the
Agent and the Trustee with a Daily Report in accordance with subsection
4.02(a) of the Servicing Agreement. The Agent shall make copies of the Daily
Report available to the Purchasers at their reasonable request at the Agent's
office in The City of New York.
SECTION 4A.03. Statements and Notices. (a) Monthly
Settlement Statements. On each Settlement Report Date (commencing with the
Settlement Report Date occurring in December 1997), the Servicer shall deliver
to the Trustee and the Agent a Monthly Settlement Statement in the Form of
Exhibit E setting forth, among other things,, the Dilution Reserve Ratio, the
Minimum Ratio, the Carrying Cost Reserve Ratio and the Servicing Reserve
Ratio, each as recalculated for the next succeeding Settlement Period. The
Agent shall forward a copy of each Monthly Settlement Statement to any
Purchaser upon request by such Purchaser. The Company and the Servicer will
deliver copies of all
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Series 1997-A Supplement
notices, reports (other than Daily Reports), statements and other documents
delivered by it pursuant to the Pooling and Servicing Agreements to each
Rating Agency.
(b) Annual Certificate holders' Tax Statement. On or before
April 1 of each calendar year (or such earlier date as required by applicable
law), beginning with calendar year 1998, the Company on behalf of the Trustee
shall furnish, or cause to be furnished, to each Person who at any time during
the preceding calendar year was a Purchaser, a statement prepared by the
Company containing the aggregate amount distributed to such Person for such
calendar year or the applicable portion thereof during which such Person was a
Purchaser, together with such other information as is required to be provided
by an issuer of indebtedness under the Internal Revenue Code and such other
customary informa tion as the Company deems necessary to enable the Purchasers
to prepare their tax returns. Such obligation of the Company shall be deemed
to have been satisfied to the extent that substantially comparable information
shall have been prepared by the Servicer and provided to the Trustee or the
Agent and to the Purchasers, in each case pursuant to any requirements of the
Internal Revenue Code as from time to time in effect. The Trustee shall be
under no obligation to prepare tax returns for the Trust.
(c) Early Amortization Event/Distribution of Principal
Notices. Upon the occurrence of an Early Amortization Event with respect to
the Series 1997-A, the Company or the Servicer, as the case may be, shall give
prompt written notice thereof to the Trustee and the Agent. As promptly as
reasonably practicable after its receipt of notice of the occurrence of an
Early Amortization Event with respect to Series 1997-A, the Trustee shall give
notice (i) to each Rating Agency (which notice shall be given, by telephone or
otherwise, not later than the second Business Day after such receipt) and (ii)
to the Agent, who in turn shall give notice to each Purchaser. In addition, on
the Business Day preceding each day on which a distribution of principal is to
be made during the Series 1997-A Amortiza tion Period, the Servicer shall
direct the Agent to send notice to each Purchaser, which notice shall set
forth the amount of principal to be distributed on the related date to the
Purchasers with respect to the outstanding VFC Certificates.
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Series 1997-A Supplement
ARTICLE V
Additional Early Amortization Events
SECTION 5.01. Additional Early Amortization Events. If any
one of the events specified in Section 7.01 of the Agreement (after any grace
periods or consents applicable thereto) or any one of the following events
(each, an "Early Amortization Event") shall occur during the Series 1997-A
Revolving Period:
(a) (i) failure on the part of the Servicer to direct any
payment or deposit to be made, or failure of any payment or deposit
to be made, in respect of interest owing on any VFC Certificate or
the Commitment Fee within five Business Days of the date such
interest or Commitment Fee is due or (ii) failure on the part of the
Servicer to direct any payment or deposit to be made, or of the
Company to make any payment or deposit in respect of any other
amounts owing by the Company, under any Pooling and Servicing
Agreement to or for the benefit of the Purchasers within five
Business Days of the date such other amount is due or such deposit is
required to be made;
(b) failure on the part of the Company duly to observe or
perform in any material respect any covenant or agreement of the
Company set forth in any Pooling and Servicing Agreement (including
each covenant contained in Sections 2.07 and 2.08 of the Agreement)
that continues unremedied 30 days after the earlier of (i) the date
on which a Responsible Officer of the Company or, so long as the
Servicer is an Affiliate of the Company, a Responsible Officer of the
Servicer has knowledge of such failure and (ii) the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Agent or Purchasers evidencing 25% or
more of the Series 1997-A Invested Amount;
(c) any representation or warranty made or deemed made by
the Company in any Pooling and Servicing Agreement to or for the
benefit of the Purchasers shall prove to have been incorrect in any
material respect when made or when deemed made that continues to be
incorrect 30 days after the earlier of (i) the date on which a
Responsible Officer of the Company or, so long as the Servicer is an
Affiliate of the Company, a Responsible Officer of the Servicer has
knowledge of
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Series 1997-A Supplement
such failure and (ii) the date on which notice of such failure,
requiring the same to be remedied, shall have been given to the
Company by the Trustee or to the Company and the Trustee by the Agent
or Purchasers evidencing 25% or more of the Series 1997-A Invested
Amount and as a result of such incorrectness, the interests, rights
or remedies of the Purchasers have been materially and adversely
affected; provided, however, that an Early Amortization Event with
respect to Series 1997-A shall not be deemed to have occurred under
this paragraph if the incorrectness of such representation or
warranty gives rise to an obligation to repurchase or make an
adjustment payment in respect of the related Receivables and the
Company has repurchased or made an adjustment payment in respect of
the related Receivable or all such Receivables, if applicable, in
accordance with the provisions of any Pooling and Servicing Agreement
within 10 Business Days of the day on which the Company was obligated
to do so;
(d) a Servicer Default with respect to the Servicer other
than any Servicer Default that is within subsection 5.01(a) above
shall have occurred and be continuing;
(e) a Purchase Termination Event shall have occurred and be
continuing;
(f) a Change in Control shall have occurred;
(g) the Series 1997-A Allocated Receivables Amount shall be
less than the Series 1997-A Target Receivables Amount for a period of
five consecutive Business Days;
(h) any of the Agreement, the Servicing Agreement, this
Supplement or the Receivables Sale Agreement shall cease, for any
reason, to be in full force and effect, or the Company, the Servicer,
the Seller or any Affiliate thereof shall so assert in writing;
(i) the Trust shall for any reason cease to have a valid and
perfected first priority undivided ownership or first priority
security interest in any of the Trust Assets (subject to no other
Liens other than any Permitted Liens) and such cessation would,
individually or together with other cessations, have a Material
Adverse Effect;
(j) a Federal tax notice of Lien, in an amount
equal to or greater than $2,000,000, shall have been
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Series 1997-A Supplement
filed against the Company or the Trust unless such Lien is being
contested in compliance with the standard set forth in clause (i) of
subsection 2.07(l) of the Agreement or there shall have been
delivered to the Trustee and the Rating Agencies proof of release of
such Lien;
(k) a notice of Lien shall have been filed by the Pension
Benefit Guaranty Corporation against the Company or the Trust under
Section 412(n) of the Code or Section 302(f) of ERISA for a failure
to make a required installment or other payment to a plan to which
Section 412(n) of the Code or Section 302(f) of ERISA applies and
such notice could reasonably be expected to have a Material Adverse
Effect with respect to the Company or the Trust unless there shall
have been delivered to the Trustee and the Rating Agencies proof of
the release of such Lien;
(l) one or more judgments for the payment of money (to the
extent not bonded or covered by insurance to the reasonable
satisfaction of the Agent) shall be rendered against the Company in
an aggregate amount greater than $50,000 and the same shall remain
undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to levy upon assets or
properties of the Company, the Servicer or the Seller to enforce such
judgment or judgments; or
(m) the Trust shall issue any Series of Investor
Certificates other than the VFC Certificates,
then, in the case of (x) any event described in Section 7.01 of the Agreement
(after the applicable grace period (if any) provided for therein) and
paragraph (m) above, automatically without any notice or action on the part of
the Trustee or Purchasers, an early amortization period shall immediately
commence or (y) any other event described above, after the applicable grace
period (if any) set forth in the applicable subsection, the Trustee may, and
at the written direction of the Majority Purchasers shall, by written notice
then given to the Company and the Servicer, declare that an early amortization
period has commenced as of the date of such notice with respect to Series
1997-A (any such period under clause (x) or (y) above, an "Early Amortization
Period"); provided, however, that in the case of the event described in clause
(g) above, if an Early Amortization Period has not been declared within 10
Business Days from the occurrence of
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Series 1997-A Supplement
such event, then an Early Amortization Period shall occur automatically
unless, (i) prior to the end of such 10 Business Day period, the Series 1997-A
Allocated Receivables Amount shall no longer be less than the Series 1997-A
Target Receivables Amount and (ii) so long as the Series 1997-A Allocated
Receivables Amount continues to be equal to or greater than the Series 1997-A
Target Receivables Amount, VFC Certificate holders evidencing 66-2/3% or more
of the Series 1997-A Invested Amount shall have waived the occurrence of such
event.
Notwithstanding the foregoing, a delay or failure in
performance referred to in clause (a) above for a period of up to five
Business Days after the applicable grace period, or in clause (b) above for a
period of up to 30 Business Days after the applicable grace period, will not
constitute an Early Amortization Event if such delay or failure could not have
been prevented by the exercise of reasonable diligence by the Company and such
delay or failure was caused by a Force Majeure Delay. The Company will
nevertheless be required to use its best efforts to perform its obligations in
a timely manner in accordance with the terms of the Transaction Documents, and
the Company shall promptly give the Trustee an Officer's Certificate notifying
it of any such delay or failure.
ARTICLE VI
Servicing Fee
SECTION 6.01. Servicing Compensation. The portion of the
Servicing Fee allocable to Series 1997-A (the "Series 1997-A Monthly Servicing
Fee") shall be payable to the Servicer on each Distribution Date for the
preceding Settlement Period, in an amount equal to the product of (a) the
Servicing Fee and (b) a fraction, the numerator of which shall be equal to the
Series 1997-A Invested Amount as of the end of the second preceding Settlement
Period and the denominator of which shall be equal to the Aggregate Invested
Amount as of the end of such second preceding Settlement Period; provided,
however, that, for the purposes of calculating the Accrued Expense Adjustment
on the last Business Day of any Accrual Period, such calculation shall be
based on the Series 1997-A Invested Amount and Aggregate Invested Amount as of
the end of the most recent Settlement Period that has elapsed. To the extent
that funds on deposit in the Series 1997-A Non-Principal Collection
Sub-subaccount on any such Distribution Date are insufficient to pay the
Series 1997-A Monthly Servicing Fee
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Series 1997-A Supplement
due on such date as set forth in the Monthly Settlement Statement delivered by
the Servicer to the Trustee, the Trustee shall so notify the Company and the
Company shall immediately pay the Servicer the amount of any such deficiency.
ARTICLE VII
Change in Circumstances
SECTION 7.01. Illegality. Notwithstanding any other
provision herein, if, after the Issuance Date, the adoption of or any change
in any law or regulation or in the interpretation thereof by any Governmental
Authority charged with the administration or interpretation thereof shall make
it unlawful for any Purchaser to make or maintain its portion of the VFC
Certificate holders' Interest in any Eurodollar Tranche then, by written
notice to the Agent, the Trustee and the Company, such Purchaser may declare
that the portion of each Eurodollar Tranche applicable to such Purchaser shall
thereafter be calculated by reference to the ABR (such calculation to be
performed by the Servicer). For purposes of this Section 7.01, a notice to the
Agent, the Trustee or the Company by any Purchaser shall be effective as to
each Eurodollar Tranche, if lawful, on the last day of the Eurodollar Period
or NIBO Period currently applicable to such Eurodollar Tranche; in all other
cases such notice shall be effective on the date of receipt by the Agent, the
Trustee or the Company, as applicable.
SECTION 7.02. Requirements of Law. (a) Notwith standing any
other provision herein, if after the Issuance Date any change in applicable
law or regulation or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law):
(i) shall change the basis of taxation of payments to any
Purchaser in respect of the Transaction Documents (except for changes
in respect of (A) taxes imposed on the overall net income of such
Purchaser by the jurisdiction which such Purchaser has its principal
office or by any political subdivision or taxing authority therein
and (B) Excluded Taxes or Non- Excluded Taxes described in Section
7.03); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets or deposits
with or for the account of credit
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Series 1997-A Supplement
extended by, any office of such Purchaser which is not
otherwise included in the determination of the Eurodollar Rate;
and the result of any of the foregoing shall be to increase the cost to such
Purchaser by an amount deemed by such Purchaser to be material, of making,
converting into, continuing or maintaining Eurodollar Tranches or to reduce
any amount receivable hereunder in respect thereof, then, from time to time,
the Company will pay to such Purchaser upon demand such additional amount or
amounts as will compensate such Purchaser for such additional costs incurred
or reduction suffered.
(b) If any Purchaser shall have determined that the adoption
after the Issuance Date of any law, rule, regulation or guideline regarding
capital adequacy or any change after the Issuance Date in any of the foregoing
or in the interpretation or administration of any of the foregoing by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof or compliance by such Purchaser or
any corporation controlling such Purchaser with any request or directive
regarding capital adequacy (whether or not having the force of law) made or
issued after the date hereof by any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Purchaser's or such corporation's capital as a consequence of this Agreement
or its obligations pursuant hereto to a level below that which such Purchaser
or such corporation would have achieved but for such adoption, change or
compliance (taking into consideration such Purchaser's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such
Purchaser or such corporation to be material, then from time to time, the
Company shall promptly pay to such Purchaser or such corporation such
additional amount or amounts as will compensate such Purchaser or such
corporation for any such reduction suffered.
(c) A certificate of each Purchaser setting forth such
amount or amounts as shall be necessary to compensate such Purchaser or any
corporation controlling such Purchaser as specified in paragraph (a) or (b)
above, as the case may be, shall be delivered to the Company (with a copy to
the Agent) and shall be conclusive absent manifest error. The Company shall
pay each Purchaser the amount shown as due on any such certificate delivered
by it within 10 days of its receipt of same.
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Series 1997-A Supplement
(d) In the event any Purchaser delivers a notice pursuant to
paragraph (e) below, the Company may require, at the Company's expense and
subject to Section 7.04, such Purchaser to assign, at par plus accrued
interest and fees, without recourse (in accordance with Section 11.10) all its
interests, rights and obligations hereunder (including, in the case of a
Purchaser, all of its portion of the VFC Certificate holders' Interest) to a
financial institution specified by the Company, provided that (i) such
assignment shall not conflict with or violate any law, rule or regulation or
order of any court or other Governmental Authority, (ii) the Company shall
have received the written consent of the Agent (which consent shall not be
unreasonably withheld) to such assignment and (iii) the Company shall have
paid to the assigning Purchaser all monies accrued and owing hereunder to it
(including pursuant to this Section 7.02).
(e) Promptly after any Purchaser has determined, in its sole
judgment, that it will make a request for increased compensation pursuant to
this Section 7.02, such Purchaser will notify the Company thereof. Failure on
the part of any Purchaser so to notify the Company or to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute
a waiver of such Purchaser's right to demand compensation with respect to such
period or any other period, provided that the Company shall not be under any
obligation to compensate any Purchaser under paragraph (b) above with respect
to increased costs or reductions with respect to any period prior to the date
that is six months prior to such request if such Purchaser knew or could
reasonably have been expected to be aware of the circumstances giving rise to
such increased costs or reductions and of the fact that such circumstances
would in fact result in a claim for increased compensation by reason of such
increased costs or reductions and provided further that the foregoing
limitation shall not apply to any increased costs or reductions arising out of
the retroactive application of any law, regulation, rule, guideline or
directive as aforesaid within such six-month period. The protection of this
Section 7.02 shall be available to each Purchaser regardless of any possible
contention as to the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred
or been imposed.
SECTION 7.03. Taxes. (a) Any and all payments by the
Company to the Agent or the Purchasers hereunder or under the other
Transaction Documents shall be made free and
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Series 1997-A Supplement
clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding (i) in the case of the Agent or any Purchaser,
taxes that would not be imposed but for a connection between such Purchaser or
the Agent (as the case may be) and the jurisdiction imposing such tax, other
than a connection arising solely by virtue of the activities of such Purchaser
or the Agent (as the case may be) pursuant to or in respect of this Agreement
or under any other Transaction Document or any transaction hereunder or
thereunder; (ii) any taxes imposed on the Agent or such Purchaser as a result
of payments not related to the VFC Certificates or this Supplement; (iii) any
taxes that would not have been imposed but for the failure of the Agent or
such Purchaser, as applicable, to provide and keep current to the extent
required by law any certification or other documentation required to be
furnished by the Agent or such Purchaser under Subsection 7.03(f) of this
Supplement; (iv) any taxes imposed as a result of a change (other than a
change mandated by law or this Agreement) by the Agent or any Purchaser of the
office in which any VFC Certificate is held, accounted for or booked; and (v)
any Withholding Taxes (as defined in Subsection 7.03(g) below) except to the
extent provided in Subsection 7.03(g) below (all such excluded taxes being
referred to hereinafter as "Excluded Taxes" and all such taxes, levies,
imposts, deductions, charges, withholdings and liabilities other than Excluded
Taxes being hereinafter referred to as "Taxes"). If any Taxes shall be
required by law to be deducted from or in respect of any sum payable hereunder
or under any other Transaction Document to any Purchaser or the Agent, (i) the
sum payable by the Company shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 7.03) such Purchaser or the Agent,
as the case may be, receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Company shall make such deductions
and (iii) the Company shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other
Transaction Document (hereinafter referred to as "Other Taxes").
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Series 1997-A Supplement
(c) The Company will indemnify each Purchaser and the Agent
for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 7.03)
paid by such Purchaser or the Agent, as the case may be, and any liability
(including penalties, interest and expenses including reasonable attorney's
fees and expenses) arising therefrom or with respect thereto whether or not
such Taxes or Other Taxes were correctly or legally asserted. A certificate as
to the amount of such payment or liability prepared by a Purchaser or the
Agent, absent manifest error, shall be final, conclusive and binding for all
purposes, provided that if the Company reasonably believes that such Taxes
were not correctly or legally asserted, such Purchaser or the Agent, as the
case may be shall use reasonable efforts to cooperate with the Company to
obtain a refund of such Taxes or Other Taxes. Such indemnification shall be
made within 10 days after the date any Purchaser or the Agent, as the case may
be, makes written demand therefor. If a Purchaser or the Agent shall become
aware that it is entitled to receive a refund in respect of Taxes or Other
Taxes, it shall promptly notify the Company of the availability of such refund
and shall, within 30 days after receipt of a request by the Company, pursue or
timely claim such refund at the Company's expense. If any Purchaser or the
Agent receives a refund in respect of any Taxes or Other Taxes for which such
Purchaser or the Agent has received payment from the Company hereunder, it
shall promptly repay such refund (plus any interest received) to the Company
(but only to the extent of indemnity payments made, or additional amounts
paid, by the Company under this Section 7.03 with respect to the Taxes or
Other Taxes giving rise to such refund), provided that the Company, upon the
request of such Purchaser or the Agent, agrees to return such refund (plus any
penalties, interest or other charges required to be paid) to such Purchaser or
the Agent in the event such Purchaser or the Agent is required to repay such
refund to the relevant taxing authority.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by the Company in respect of any payment to any Purchaser
or the Agent, the Company will furnish to the Administrative Agent, at its
address referred to in Section 11.09, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section
7.03 shall survive the
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Series 1997-A Supplement
payment in full of principal and interest hereunder and the
termination of the Trust.
(f) The Agent and each of the Purchasers (or Transferees)
agrees that, prior to the date on which the first interest payment on a VFC
Certificate is due hereunder, it will deliver to the Servicer and the Trustee
(i) if the Agent or such Purchaser is not incorporated under the laws of the
United States or any State thereof (a "Non- U.S. Person"), two duly completed
copies of the United States Internal Revenue Service Form 4224 or successor
applicable or required form and (ii) an Internal Revenue Service Form W-8 or
W-9 or successor applicable or required form. The Agent and each Purchaser
also agree to deliver to the Servicer and the Trustee two further copies of
the said Form 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
Servicer and the Trustee and such extensions or renewals thereof as may
reasonably be requested by the Servicer or the Trustee, unless in any such
case the Agent or such Purchaser is unable to deliver any such form due to a
change in law prior to the date on which any such delivery would otherwise be
required which renders any such form inapplicable. Notwithstanding any
provision of this Supplement or the Agreement to the contrary, the Servicer
and the Trustee shall be entitled to withhold or cause such withholding, and
additional amounts in respect of Taxes need not be paid under this Section
7.03, with respect to the Agent, a Purchaser, a Participant or an Acquiring
Purchaser in the event that such Person fails to provide all of the forms and
statements required pursuant to this paragraph (f) to the Servicer and the
Trustee.
(g) None of the Trustee, the Servicer or the Company shall
withhold with respect to any payments to the Agent or the Purchasers pursuant
to Section 1446 of the Code (a "Withholding Tax") except as provided in this
paragraph (g) and only if such withholding is required pursuant to a written
determination received by the Trustee, the Servicer or the Company from the
Internal Revenue Service. Following such determination, notwithstanding
anything to the contrary in this Section 7.03, each Purchaser, Acquiring
Purchaser or Participant which is not created or organized under the laws of
the United States or any State thereof (including the District of Columbia)
agrees that, upon written notice by the Trustee or the Company to such
Purchaser, Acquiring Purchaser or
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Series 1997-A Supplement
Participant, as the case may be, that the Trustee, the Servicer or the Company
intends to withhold Withholding Tax (such determination being a "Withholding
Event"):
(i) such Purchaser, Acquiring Purchaser or Participant shall
for tax years for which the Purchaser, Acquiring Purchaser or
Participant has already filed United States federal income tax
returns (each a "Prior Tax Year") prior to proper notice of such
Withholding Event and as a condition to the obligations of the
Servicer and the Trustee pursuant to Subsection 7.03(a), provide (A)
a signed Officer's Certificate of such Purchaser, Acquiring Purchaser
or Participant stating that amounts paid hereunder have been included
in such Purchaser's, Acquiring Purchaser's or Participant's United
States federal income tax returns for each such Prior Tax Year, which
certificate may be relied on by the Trustee and Company in asserting
to the Internal Revenue Service the applicability of Section 1463 of
the Code with respect to its liability for any Withholding Tax for
each such Prior Tax Year and (B) provide information to the Trustee
and the Company or, at the option of such Purchaser, Acquiring
Purchaser or Participant, to the Internal Revenue Service in support
of the application of Section 1463 of the Code for each such Prior
Tax Year;
(ii) if Section 1463 of the Code is not applicable for any
Prior Tax Year of such Purchaser, Acquiring Purchaser or Participant
because such Purchaser, Acquiring Purchaser or Participant did not
properly pay the United States federal income tax due on amounts
payable on its VFC Certificates or hereunder during such Prior Tax
Year, the Purchaser, Acquiring Purchaser or Participant shall
indemnify the Trust, the Trustee and the Company for any Withholding
Tax (and any interest and penalties thereon) payable by the Trustee,
the Company, the Servicer or the Trust on such amounts that are
attributable to such Prior Tax Year and with respect to which such
Purchaser, Acquiring Purchaser or Participant did not properly pay
such United States federal income tax; and
(iii) all payments to any Purchaser, Acquiring Purchaser or
Participant shall be made without deduction for any Withholding Tax
and the Company shall be solely responsible for paying any
Withholding Tax. At the time and to the extent such Purchaser,
Acquiring Purchaser or Participant receives an actual tax benefit
51
Series 1997-A Supplement
from the Company's payment of such Withholding Tax (including, a
reduction in estimated tax payments due), such Purchaser, Acquiring
Purchaser or Participant shall reimburse the Company to the extent of
such benefits.
Notwithstanding any other provision contained in this
Agreement or in any Supplement, the Servicer and the Company shall be required
to determine and notify the Trustee when withholding is appropriate under this
Section 7.03, and the Trustee shall not be liable for, and shall not be
required to pay from its own funds, the amount of any Withholding Taxes or any
related penalties or fines. To the extent that any amounts relating to any
such withholding are paid by the Trustee from its own funds, such amounts
shall be promptly reimbursed to the Trustee by the Company, the Servicer and
each Purchaser.
SECTION 7.04. Indemnity. The Company agrees to indemnify
each Purchaser and to hold each Purchaser harmless from any loss or expense
which such Purchaser may sustain or incur as a consequence of (a) default by
the Company in making a borrowing of, conversion into or continuation of a
Eurodollar Tranche after the Company has given irrevocable notice requesting
the same in accordance with the provisions of this Supplement, or (b) default
by the Company in making any prepayment in connection with a Decrease after
the Company has given irrevocable notice thereof in accordance with the
provisions of Section 2.06 of this Supplement or (c) the making of a
prepayment of a Eurodollar Tranche prior to the termination of the Eurodollar
Period or NIBO Period for such Eurodollar Tranche. 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 Eurodollar
Period or NIBO Period (or in the case of a failure to borrow, convert or
continue, the Eurodollar Period or NIBO Period that would have commenced on
the date of such prepayment or of such failure) in each case at the applicable
rate of interest for such Eurodollar Tranche provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Purchaser) which would have
accrued to such Purchaser on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank Eurodollar market;
provided that any payments made by the Company pursuant to this Section shall
be Company Subordinated Obligations. This
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Series 1997-A Supplement
covenant shall survive the termination of this Supplement and the payment of
all amounts payable hereunder. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by any Purchaser to the
Company shall be conclusive absent manifest error.
SECTION 7.05. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate. If (a)(i) any Purchaser delivers a notice
described in Section 7.02 or (ii) the Company is required to pay any
additional amount or indemnification payment to any Purchaser pursuant to
Sections 7.03 or 7.04, the Company may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in
subsection 11.10(b)), upon notice to such Purchaser and the Agent, require
such Purchaser to transfer and assign, without recourse (in accordance with
and subject to the restrictions contained in Section 11.10), all of its
interests, rights and obligations under this Agreement to an assignee that
shall assume such assigned obligations (which assignee may be another
Purchaser, if another Purchaser accepts such assignment); provided that (A)
such assignment shall not conflict with any law, rule or regulation or order
of any court or other Governmental Authority having jurisdiction, (B) the
Company shall have received the prior written consent of the Agent, which
consent shall not unreasonably be withheld, and (C) the Company or such
assignee shall have paid to the affected Purchaser in immediately available
funds an amount equal to the sum of the principal of, and interest accrued to
the date of such payment on, the outstanding VFC Certificates of such
Purchaser plus all fees and other amounts accrued for the account of such
Purchaser hereunder (including any amounts under Sections 7.02, 7.03 and
7.04); and provided further that, if prior to any such transfer and assignment
the circumstances or event that resulted in such Purchaser's notice under
Section 7.02 or the amounts paid pursuant to Sections 7.03 or 7.04, as the
case may be, cease to cause such Purchaser to suffer increased costs or
reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 7.02, or cease
to result in amounts being payable under Sections 7.03 or 7.04, as the case
may be (including as a result of any action taken by such Purchaser pursuant
to subsection 7.05(b) below), or if such Purchaser shall withdraw its notice
under Section 7.02 or shall waive its right to further payments under Sections
7.03 or 7.04 in respect of such circumstances or event, as the case may be,
then such Purchaser shall not thereafter be required to make any such transfer
and assignment hereunder.
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(b) If (i) any Purchaser delivers a notice described in
Section 7.02 or (ii) the Company is required to pay any additional amount to
any Purchaser (or Transferee), pursuant to Sections 7.03 or 7.04, then such
Purchaser shall use reasonable efforts (which shall not require such Purchaser
to incur an unreimbursed loss or unreimbursed cost or expense or otherwise
take any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden reasonably deemed by it to
be significant) (A) to file any certificate or document reasonably requested
in writing by the Company or (B) to assign its rights and delegate and
transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would enable it to withdraw its
notice pursuant to Section 7.02 or would reduce amounts payable pursuant to
Sections 7.03 or 7.04, as the case may be, in the future. The Company hereby
agrees to pay all reasonable costs and expenses incurred by any Purchaser in
connection with any such filing or assignment, delegation and transfer.
SECTION 7.06. Limitation. The obligations of the
Company under this Article VII shall be limited by Section 11.13.
ARTICLE VIII
Covenants, Representations and Warranties
SECTION 8.01. Representations and Warranties of the Company
and the Servicer. The Company and the Servicer each hereby represents and
warrants to the Trustee, the Agent and each of the Purchasers that each and
every of their respective representations and warranties contained in the
Agreement and, in the case of the Servicer, the Servicing Agreement is true
and correct as of the Issuance Date and as of the date of each Increase.
SECTION 8.02. Covenants of the Company and the Servicer. The
Company and the Servicer hereby agree, in addition to their obligations under
the Agreement and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in
compliance with the terms of the Agreement and the Supplement
relating to each Outstanding Series;
(b) they will (i) provide the Agent with evidence,
satisfactory to the Agent, of the establishment of
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Series 1997-A Supplement
computer back-up systems (in accordance with the time limits set
forth in Schedule 3) and (ii) within 90 days of the Issuance Date,
deliver to the Trustee executed copies of any landlord waivers (or
the lease containing such waiver provisions), in a form reasonably
acceptable to the Trustee, that may be necessary to grant to the
Trustee access to any leased premises of the Servicer for which the
Trustee may require access to perform the collection and
administrative functions to be performed by the Trustee under the
Transaction Documents;
(c) they shall observe in all material respects each and
every of their respective covenants (both affirmative and negative)
contained in the Agreement, the Servicing Agreement, this Supplement
and all other Transaction Documents to which each is a party;
(d) they shall afford the Agent or any representative of the
Agent access to all records relating to the Receivables at any
reasonable time during regular business hours, upon reasonable prior
notice, for purposes of inspection and shall permit the Agent or any
representative of the Agent to visit any of the Company's or the
Servicer's, as the case may be, offices or properties during regular
business hours and as often as may reasonably be requested, subject
to the Company's or the Servicer's, as the case may be, normal
security and confidentiality requirements and to discuss the
business, operations, properties, financial and other conditions of
the Company or the Servicer with their respective officers and
employees and with their Independent Public Accountants; provided
that the Agent shall notify the Company or the Servicer, as the case
may be, prior to any contact with such accountants and shall give the
Company or the Servicer the opportunity to participate in such
discussions; and
(e) they shall not waive the provisions of subsections
7.01(d), (e)(i),(g) and (h)of the Receivables Sale Agreement without
the consent of the Agent.
SECTION 8.03. Covenants of the Servicer. The
Servicer hereby agrees that it shall:
(i) observe each and all of its respective covenants (both
affirmative and negative) contained in each Pooling and Servicing
Agreement in all material respects;
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Series 1997-A Supplement
(ii) provide to the Agent, simultaneously with delivery to
the Trustee or the Rating Agencies, all reports, notices,
certificates, statements and other documents required to be delivered
to the Trustee or the Rating Agencies pursuant to the Agreement, the
Servicing Agreement and the other Transaction Documents and furnish
to the Agent promptly after receipt thereof a copy of each material
notice, material demand or other material communication (excluding
routine communications) received by or on behalf of the Company or
the Servicer with respect to the Transaction Documents; and
(iii) provide notice to the Agent of the appointment of a
Successor Servicer pursuant to Section 6.02 of the Servicing
Agreement; and
(iv) (A) immediately notify the Trustee and the Agent upon
receipt of notification from the Seller that in connection with any
Supplier Quality Assurance review relating to the GMT 800 Program, an
officer of the Seller has received notice from GM that such review is
unsatisfactory in any material respect, (B) keep the Trustee and the
Agent reasonably informed of the corrective actions being taken by
the Seller and (C) promptly notify the Trustee and the Agent of the
commencement and termination of any GMT/PPAP Rejection Period.
SECTION 8.04. Covenant of the Company. The Company hereby
agrees that it shall not permit any amendment, supplement, modification or
waiver or exercise any consent rights granted to it under the Receivables Sale
Agreement with respect to the GM Agreements unless (i) such amendment,
supplement, modification or waiver or such exercise of consent rights would
not have an adverse effect on the interests, rights or remedies of the Trustee
or the Investor Certificateholders under or with respect to the transaction
documents or (ii) the Agent shall have consented in writing to such amendment,
supplement, modification or waiver or such exercise of consent rights.
SECTION 8.05. Obligations Unaffected. The obligations of the
Company and the Servicer to the Agent and the Purchasers under this Supplement
shall not be affected by reason of any invalidity, illegality or irregularity
of any of the Receivables or any sale of any of the Receivables.
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SECTION 8.06. Representations and Warranties of the Initial
Purchasers and any Acquiring Purchasers. Each Initial Purchaser and any
Acquiring Purchaser represents, warrants and covenants to the Company that:
(a) it is not a trust, estate, partnership or "S
Corporation" (within the meaning of Section 1361(a) of the Code) for United
States federal income tax purposes, or if it is such an entity, the value of
the entity's interest in the VFC Certificates is less than 50% of the total
value of all the entity's assets;
(b) it has not acquired and agrees that it will not sell,
trade or transfer any interest in a VFC Certificate or cause a Participation
or any other interest in a VFC Certificate or this Supplement, to be marketed
on or through an "established securities market" within the meaning of Section
7704(b)(1) of the Code (and the Treasury regulations promulgated thereunder)
including, without limitation, an over-the-counter market or an interdealer
quotation system that regularly disseminates firm buy or sell quotations;
(c) it is the sole beneficial owner of its VFC Certificates
and it will remain the sole beneficial owner of such VFC Certificates until
such time as such VFC Certificates, or any Participation or other interest
therein, are sold, assigned or otherwise transferred in accordance with
Section 11.10 of this Supplement; and
(d) it will not sell, assign or transfer any VFC
Certificate, or any Participation or other interest therein, except as allowed
and to the extent permitted under Section 11.10 of this Supplement.
ARTICLE IX
Conditions Precedent
SECTION 9.01. Conditions Precedent to Effectiveness of
Supplement. This Supplement will become effective on the date (the "Effective
Date") on which the following conditions precedent have been satisfied:
(a) Transaction Documents. The Agent shall have received an
original copy for itself and photocopies for each Purchaser, each executed and
delivered in form and substance satisfactory to the Agent, of (i) the
Agreement executed by a duly authorized officer of each of the
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Series 1997-A Supplement
Company, the Servicer and the Trustee, (ii) this Supplement executed by a duly
authorized officer of each of the Company, the Servicer, the Trustee, the
Agent and the Initial Purchasers and (iii) the other Transaction Documents
duly executed by the parties thereto.
(b) Corporate Documents; Corporate Proceedings of the
Company and Servicer. The Agent shall have received, with a copy for each
Purchaser, from the Company, the Seller and the Servicer, complete copies of:
(i) the certificate of incorporation including all
amendments thereto, of such Person, certified as of a recent date by
the Secretary of State or other appropriate authority of the state of
incorporation, as the case may be, and a certificate of compliance,
of status or of good standing, as and to the extent applicable, of
each such Person as of a recent date, from the Secretary of State or
other appropriate authority of such jurisdiction;
(ii) a certificate of the Secretary or Assistant Secretary
of such Person dated the Effective Date and certifying (A) that
attached thereto is a true and complete copy of the By-laws of such
Person, as in effect on the Effective Date and at all times since a
date prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy of the
resolutions of the Board of Directors of such Person or committees
thereof authorizing the execution, delivery and performance of the
Transaction Documents to which it is a party and the transactions
contemplated thereby, and in the case of the Company, the execution,
sale and delivery of the VFC Certificates, and that such resolutions
have not been amended, modified, revoked or rescinded and are in full
force and effect on the Effective Date, (C) that the certificate of
incorporation of such Person has not been amended since the date of
the last amendment thereto shown on the certificate of the Secretary
of State of the state of incorporation of such Person furnished
pursuant to clause (i) above and (D) as to the incumbency and
specimen signature of each officer executing any Transaction
Documents or any other document delivered in connection herewith or
therewith on behalf of such Person; and
(iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or
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Series 1997-A Supplement
Assistant Secretary executing the certificate pursuant to clause (ii)
above.
(c) Good Standing Certificates. The Agent shall have
received copies of certificates of compliance, of status or of good standing,
dated as of a recent date from the Secretary of State or other appropriate
authority of such jurisdiction, with respect to the Company, the Servicer and
the Seller, in each State where the ownership, lease or operation of property
or the conduct of business requires it to qualify as a foreign corporation,
except where the failure to so qualify would not have a material adverse
effect on the business, operations, properties or condition (financial or
otherwise) of the Company, the Servicer or the Seller, as the case may be.
(d) Consents, Licenses, Approvals, Etc. The Agent shall have
received, with a photocopy for each Purchaser, certificates dated the
Effective Date of the President, Vice Chairman, Chief Financial Officer or any
Vice President of the Company, the Servicer and the Seller either (i)
attaching copies of all material consents, licenses and approvals required in
connection with the execution, delivery and performance by the Company, the
Servicer or the Seller, as the case may be, of the Agreement, this Supplement,
the Receivables Sale Agreement and/or the Servicing Agreement, as the case may
be, and the validity and enforceability of the Agreement, this Supplement, the
Receivables Sale Agreement and/or the Servicing Agreement against the Company,
the Servicer or the Seller, as the case may be, and such consents, licenses
and approvals shall be in full force and effect or (ii) stating that no such
consents, licenses or approvals are so required.
(e) Filings, Registrations and Recordings. Any documents
(including, without limitation, financing statements) required to be filed in
order (i) to perfect the sale of the Receivables by the Seller to the Company
pursuant to the Receivables Sale Agreement and (ii) to create, in favor of the
Trustee, a perfected ownership/perfected first security interest in the Trust
Assets under the Agreement with respect to which an ownership/security interest
may be perfected by a filing under the UCC or other comparable statute shall, in
each case, have been properly prepared for filing in each office in each
jurisdiction where required pursuant to the Agreement or the Receivables Sale
Agreement, as the case may be. The Agent shall have received evidence
reasonably satisfactory to it of each such filing, registration or
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Series 1997-A Supplement
recordation and reasonably satisfactory evidence of the payment of any
necessary fee, tax or expense relating thereto.
(f) Lien Searches. The Agent and the Trustee shall have
received the results of a recent search satisfactory to the Agent of any UCC
filings (or equivalent filings) made with respect to the Company and the
Seller in the states (or other jurisdictions) in which the chief executive
office of the Company and the Seller is located, any offices of the Company
and the Seller in which records have been kept relating to the Receivables and
the other jurisdictions in which UCC filings (or equivalent filings) were made
pursuant to the preceding subsection, together with copies of the financing
statements (or similar documents) disclosed by such search, and accompanied by
evidence satisfactory to the Agent that any Liens disclosed by such search
would be Permitted Liens or have been released.
(g) Legal Opinions. The Agent and the Trustee shall have
received, with a counterpart for each Purchaser, opinions (i) of counsel to
the Company, the Servicer and the Seller, dated the Issuance Date, as to
corporate, tax, bankruptcy, perfection and other matters, in form and
substance acceptable to the Agent and its counsel and (ii) opinions of local
counsel to the Company, the Servicer and the Seller, dated the Issuance Date,
as to certain corporate, state tax, perfection, priority and other matters, in
form and substance acceptable to the Agent and its counsel.
(h) Fees. The Agent, the Initial Purchaser and the Trustee
shall have received payment of all fees and other amounts due and payable to
any of them on or before the Effective Date.
(i) Funding Under Credit Agreement. The initial
funding under the Credit Agreement shall have occurred or
shall occur simultaneously with the Effective Date.
(j) Conditions Under the Receivables Sale Agreement. A
Responsible Officer of the Company shall have certified that all conditions to
the obligations of the Company and the Seller under the Receivables Sale
Agreement shall have been satisfied in all material respects.
(k) Copies of Written Policies. The Agent and
the Trustee shall have received copies of the written
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Series 1997-A Supplement
Policies of the Seller in form and substance reasonably acceptable to the Agent.
(l) Company's Board of Directors. The composition of the
Company's Board of Directors (including one independent director) shall be
reasonably acceptable to the Agent; provided, however, that a second
independent director shall be appointed to the Board of Directors upon the
request of the Agent.
(m) Financial Statements. The Agent and the Trustee shall
have received a pro forma balance sheet for the Company giving effect to all
transactions occurring on or before the Issuance Date. The Agent shall have
received the consolidated balance sheets and statements of income,
stockholders' equity and cash flows of American Axle & Manufacturing, Inc. and
its respective subsidiaries on a consolidated basis (i) as of and for the
fiscal year ended December 31, 1996, audited by and accompanied by the opinion
of Deloitte & Touche LLP, independent public accountants, and (ii) as of and
for the fiscal quarter ended June 30, 1997, certified by its chief financial
officer.
(n) Solvency Letter. The Agent and the Trustee shall have
received a solvency letter, in form and substance satisfactory to the Agent
from Xxxxxx, Xxxxxx & Co., as to the solvency of the Servicer after giving
effect to the transactions occurring on or before the Issuance Date.
(o) Representations and Warranties. The representations and
warranties of the Company and the Servicer in the Agreement and this
Supplement shall be true and correct in all material respects.
ARTICLE X
The Agent
SECTION 10.01. Appointment. Each Purchaser hereby
irrevocably designates and appoints the Agent as the agent of such Purchaser
under this Supplement and each such Purchaser irrevocably authorizes the
Agent, in such capacity, to take such action on its behalf under the
provisions of this Supplement and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this
Supplement, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Supplement, the Agent shall not have any duties or
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responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Purchaser, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Supplement or otherwise exist against the Agent.
SECTION 10.02. Delegation of Duties. The Agent may execute
any of its duties under this Supplement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel (who may be
counsel for the Company or the Servicer), independent public accountants and
other experts selected by it concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
SECTION 10.03. Exculpatory Provisions. Neither the Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with the Agreement or this
Supplement (x) with the consent or at the request of the Majority Purchasers
or (y) in the absence of its own gross negligence or wilful misconduct or (ii)
responsible in any manner to any of the Purchasers for any recitals,
statements, representations or warranties made by the Company or any officer
thereof contained in this Supplement or any other Transaction Document or in
any certificate, report, statement or other document referred to or provided
for in, or received by the Agent under or in connection with, this Supplement
or any other Transaction Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Supplement or any other
Transaction Document or for any failure of the Company to perform its
obligations hereunder or thereunder. The Agent shall not be under any
obligation to any Purchaser to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Supplement or any other Transaction Document, or to inspect the properties,
books or records of the Company.
SECTION 10.04. Reliance by Agent. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon any VFC
Certificate, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other
documents 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
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Series 1997-A Supplement
Company or the Servicer), independent accountants and other experts selected
by the Agent and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts. The Agent may deem and treat the payee of any VFC
Certificate as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Supplement or any other Transaction Document unless it shall
first receive such advice or concurrence of the Majority Purchasers as it
deems appropriate and it shall first be indemnified to its satisfaction by the
Purchasers against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Supplement and the other Transaction Documents in accordance with a
request of the Majority Purchasers, and such request and any action taken or
failure to act pursuant thereto shall be binding.
SECTION 10.05. Notice of Servicer Default or Early
Amortization Event or Potential Early Amortization Event. The Agent shall not
be deemed to have knowledge or notice of the occurrence of any Servicer
Default with respect to the Servicer or any Early Amortization Event or
Potential Early Amortization Event hereunder unless the Agent has received
written notice from a Purchaser, the Company or the Servicer referring to the
Agreement or this Supplement, describing such Servicer Default or Early
Amortization Event or Potential Early Amortization Event and stating that such
notice is a "notice of a Servicer Default with respect to the Servicer" or a
"notice of an Early Amortization Event or Potential Early Amortization Event",
as the case may be. In the event that the Agent receives such a notice, the
Agent shall give notice thereof to the Purchasers, the Trustee, the Company
and the Servicer. The Agent shall take such action with respect to such
Servicer Default or Early Amortization Event or Potential Early Amortization
Event as shall be reasonably directed by the Majority Purchasers; provided
that unless and until the Agent shall have received such directions and
indemnifica tion satisfactory to the Agent from the Purchasers, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Servicer Default or Early Amortization Event or
Potential Early Amortization Event as it shall deem advisable in the best
interests of the Purchasers.
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SECTION 10.06. Non-Reliance on Agent and Other Purchasers.
Each Purchaser expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the Company, shall
be deemed to constitute any representation or warranty by the Agent to any
Purchaser. Each Purchaser represents to the Agent that it has, independently
and without reliance upon the Agent or any other Purchaser, 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 enter into this Supplement. Each Purchaser also represents that it will,
independently and without reliance upon the Agent or any other Purchaser, 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 Supplement and the other Transaction
Documents, 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 Purchasers by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Purchaser with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower which may come into the possession of the
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
SECTION 10.07. Indemnification. The Purchasers agree to
indemnify the Agent in its capacity as such (to the extent not reimbursed by
the Company and the Servicer and without limiting the obligation of the
Company and the Servicer to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is
sought (or, if indemnification is sought after the Commitment Termination
Date, ratably in accordance with their Commitment Percentages immediately
prior to such date), from and against any and all liabilities, obliga tions,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time be imposed or,
incurred by or asserted against the Agent in any way relating to or arising
out of, the Commitments, this Supplement any of the
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Series 1997-A Supplement
other Transaction Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent under or in connection with any of the
foregoing; provided that no Purchaser shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Agent's gross negligence or wilful misconduct. The agreements in this Section
shall survive the payment of all amounts payable hereunder.
SECTION 10.08. Agent in Its Individual Capacity. The Agent
and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Company, the Servicer or any of their
Affiliates as though the Agent were not the Agent hereunder. With respect to
any VFC Certificate held by the Agent, the Agent shall have the same rights
and powers under this Supplement and the other Transaction Documents as any
Purchaser and may exercise the same as though it were not the Agent, and the
terms "Purchaser" and "Purchasers" shall include the Agent in its individual
capacity.
SECTION 10.09. Successor Agent. The Agent may resign as
Agent upon 10 days' notice to the Purchasers. If the Agent shall resign as
Agent under this Supplement, then the Majority Purchasers shall appoint from
among the Purchasers a successor agent for the Purchasers, which successor
agent shall be approved by the Company and the Servicer (which approval shall
not be unreasonably withheld), whereupon such successor agent shall succeed to
the rights, powers and duties of the Agent, and the term "Agent" shall mean
such successor agent effective upon such appointment and approval, 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 Supplement. After any retiring Agent's resignation as
Agent, the provisions of this Article X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Supplement.
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ARTICLE XI
Miscellaneous
SECTION 11.01. Ratification of Agreement. As supplemented by
this Supplement, the Agreement is in all respects ratified and confirmed and
the Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
SECTION 11.02. Governing Law. THIS SUPPLEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 11.03. Further Assurances. Each of the Company, the
Servicer and the Trustee 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 or Majority Purchasers more fully to effect the
purposes of this Supplement and the sale of the VFC Certificates hereunder,
including, without limitation, in the case of the Company and the Servicer,
the execution of any financing or continuation statements or similar documents
relating to the Receivables and the other Trust Assets for filing or
registration under the provisions of the UCC or similar legislation of any
applicable jurisdiction; provided that in the case of the Trustee, in
furtherance and without limiting the generality of subsection 8.01(d) of the
Agreement, the Trustee shall have received a reasonable assurance of adequate
reimbursement and indemnity in connection with taking such action before the
Trustee shall be required to take any such action.
SECTION 11.04. Payments. Each payment to be made hereunder
shall be made on the required payment date in lawful money of the United
States and in immediately available funds, if to the Purchasers, at the office
of the Agent set forth below its signature hereto. On each Distribution Date,
the Agent shall remit in like funds to each Purchaser its applicable pro rata
share (based on each such Purchaser's Series 1997-A Invested Amount) of each
such payment received by the Agent for the account of the Purchasers.
SECTION 11.05. Costs and Expenses. The Company agrees to pay
all reasonable fees, out-of-pocket costs and expenses of the Agent (including,
without limitation, reasonable fees and disbursements of one counsel to the
Agent) in connection with (i) the preparation, execution and delivery of this
Supplement, the Agreement and the other
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Transaction Documents and amendments or waivers of any such documents and (ii)
the enforcement by the Agent of the obligations and liabilities of the Company
and the Servicer under the Agreement, this Supplement or any related document;
provided, however, that any payments made by the Company pursuant to this
Section shall be Company Subordinated Obligations.
SECTION 11.06. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee, the Agent or
any Purchaser, 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 the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 11.07. Amendments. (a) Subject to sub section (c) of
this Section 11.07, this Supplement may be amended in writing from time to
time by the Servicer, the Company and the Trustee, with the consent of the
Agent but without the consent of any holder of any outstanding VFC
Certificate, to cure any ambiguity, to correct or supplement any provisions
herein or therein which may be inconsistent with any other provisions herein
or therein or to add any other provisions to or changing in any manner or
eliminating any of the provisions with respect to matters or questions raised
under this Supplement which shall not be inconsistent with the provisions of
any Pooling and Servicing Agreement; provided, however, that such action shall
not, as evidenced by an Officer's Certificate delivered to the Trustee upon
which the Trustee may conclusively rely, have a material adverse effect on the
interests of the VFC Certificate holders (but, to the extent that the
determination of whether such action would have such a material adverse effect
requires a conclusion as to a question of law, an Opinion of Counsel shall be
delivered to the Trustee in addition to such Officer's Certificate); provided
further that any amendment that is entered into to provide additional
Enhancement for any Outstanding Series shall be deemed to have no such
material adverse effect. The Trustee may, but shall not be obligated to, enter
into any such amendment pursuant to this paragraph or paragraph (b) below that
affects the Trustee's rights, duties or immunities under any Pooling and
Servicing Agreement or otherwise.
67
Series 1997-A Supplement
(b) Subject to subsection (c) of this Section 11.07, this
Supplement may also be amended (other than in the circumstances referred to in
subsection (a)) in writing from time to time by the Servicer, the Company and
the Trustee with the consent of the Majority Purchasers for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Supplement or of modifying in any manner the rights of the
VFC Certificateholders; provided, however, that no such amendment shall,
unless signed or consented to in writing by all Purchasers, (i) extend the
time for payment, or reduce the amount, of any amount on money payable to or
for the account of any Purchaser under any provision of this Supplement, (ii)
subject any Purchaser to any additional obligation (including, without
limitation, any change in the determination of any amount payable by any
Purchaser) or (iii) change the Aggregate Commitment Amount or the number of
Purchasers which shall be required for any action under this subsection or any
other provision of this Supplement.
(c) Any amendment hereof can be affected without the Agent
being a party thereto; provided, however, that no such amendment, modification
or waiver of this Supplement that affects rights or duties of the Agent shall
be effective unless the Agent shall have given its prior written consent
thereto.
(d) No amendment hereof pursuant to clause (b) above shall
be effective until the Rating Agency Condition is satisfied (unless Series
1997-A has not been rated, in which case this Subsection 11.07(d) shall not
apply).
SECTION 11.08. Severability. If any provision hereof is void
or unenforceable in any jurisdiction, such voidness or unenforceability shall
not affect the validity or enforceability of (i) such provision in any other
jurisdiction or (ii) any other provision hereof in such or any other
jurisdiction.
SECTION 11.09. Notices. All notices, requests and demands to
or upon any party hereto to be effective shall be given (i) in the case of the
Company, the Servicer and the Trustee, in the manner set forth in Section
10.05 of the Agreement and (ii) in the case of the Agent, each Purchaser and
the Rating Agencies, in writing (including a confirmed transmission by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, (A) in the case of
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Series 1997-A Supplement
the Agent and each Purchaser, at their respective addresses set forth below
their names on Schedule 1 hereto and (B) in the case of the Rating Agencies,
at the addresses notified by such Rating Agencies; or to such other address as
may be hereafter notified by the respective parties hereto.
SECTION 11.10. Successors and Assigns. (a) Subject to
subsection 11.10(h), this Supplement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
(b) Any Purchaser may assign to one or more assignees (any
such assignee shall be referred to herein as an "Acquiring Purchaser") all or
a portion of its interests, rights and obligations under this Supplement and
the Transaction Documents; provided, however, that (i) except in the case of
an assignment to a Purchaser or an Affiliate thereof, the Company must give
its prior written consent to such assignment (which consent shall not in
either case be unreasonably withheld or delayed), (ii) except in the case of
an assignment to a Purchaser, the amount of the Commitment of the assigning
Purchaser subject to each such assignment (determined as of the date the
Commitment Transfer Supplement with respect to such assignment is delivered to
the Agent) shall not be less than $5,000,000, (iii) the parties to each such
assignment shall execute and deliver to the Agent the Commitment Transfer
Supplement, substantially in the form of Exhibit B, together with a processing
and recordation fee of $3,500 and (iv) the Acquiring Purchaser, if it shall
not be a Purchaser, shall deliver to the Agent an Administrative
Questionnaire, substantially in the form of Exhibit C. Upon acceptance and
recording pursuant to paragraph (e) of this Section 11.10, from and after the
effective date specified in each Commitment Transfer Supplement, which
effective date shall be at least five Business Days after the execution
thereof, (A) the Acquiring Purchaser thereunder shall be a party hereto and,
to the extent of the interest assigned by such Commitment Transfer Supplement,
have the rights and obligations of a Purchaser under this Supplement and (B)
the assigning Purchaser thereunder shall, to the extent of the interest
assigned by such Commitment Transfer Supplement, be released from its
obligations under this Supplement and the other Transaction Documents (and, in
the case of an Commitment Transfer Supplement covering all or the remaining
portion of an assigning Purchaser's rights and obligations under this
Supplement and the other Transaction Documents, such Purchaser shall cease to
be a party hereto but shall continue to be entitled to the benefits of
Sections 7.01,
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Series 1997-A Supplement
7.02, 7.03, 7.04 and 11.05, as well as to any fees accrued for its account and
not yet paid).
(c) By executing and delivering a Commitment Transfer
Supplement, the assigning Purchaser thereunder and the Acquiring Purchaser
thereunder shall be deemed to confirm to and agree with each other and the
other parties hereto as follows: (i) such assigning Purchaser warrants that it
is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim and that its Commitment, and the outstanding
balances of its VFC Certificates, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such
Commitment Transfer Supplement; (ii) except as set forth in (i) above, such
assigning Purchaser makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Supple ment, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Supplement, any other Transaction Document or any other instrument or document
furnished pursuant hereto or thereto, or the financial condition of the
Seller, the Company or the Servicer, or the performance or observance by the
Seller, the Company or the Servicer of any of its obligations under this
Supplement, any other Transaction Document or any other instrument or document
furnished pursuant hereto or thereto; (iii) such Acquiring Purchaser
represents and warrants that it is legally authorized to enter into such
Commitment Transfer Supplement; (iv) such Acquiring Purchaser confirms that it
has received a copy of this Supplement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Commitment Transfer Supplement; (v) such Acquiring
Purchaser will independently and without reliance upon the Agent, the Trustee,
the assigning Purchaser or any other Purchaser 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 this Supplement or any
other Transaction Document; (vi) such Acquiring Purchaser appoints and
authorizes the Agent and the Trustee to take such action as agent on its
behalf and to exercise such powers under this Supplement as are delegated to
the Agent and the Trustee, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such Acquiring
Purchaser agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Supplement are required to be performed
by it as a Purchaser.
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Series 1997-A Supplement
(d) Notwithstanding and in addition to the provisions of
Section 5.03 of the Agreement, the Agent shall maintain at one of its offices
in The City of New York a copy of each Commitment Transfer Supplement
delivered to it and a register for the recordation of the names and addresses
of the Purchasers, and the Commitments of, and the principal amount of the VFC
Certificates issued to, each Purchaser pursuant to the terms hereof from time
to time (the "Register"). Notwithstanding the provisions of Section 5.05 of
the Agreement, the entries in the Register as provided in this subsection
11.10(d) shall be conclusive and the Company, the Servicer, the Purchasers,
the Paying Agent, the Transfer Agent and Registrar, the Agent and the Trustee
shall treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Purchaser hereunder for all purposes of this Supplement,
notwith standing notice to the contrary. However, in accordance with Section
5.05 of the Agreement, in determining whether the holders of the requisite
Fractional Undivided Interests have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, VFC Certificates owned by the
Company, the Servicer or any Affiliate thereof, shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only VFC Certificates which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. VFC Certificates so owned by the Company, the Servicer or any
Affiliate thereof which have been pledged in good faith shall not be
disregarded and may be regarded as outstanding if the pledgee establishes to
the satisfaction of the trustee the pledgee's right so to act with respect to
such VFC Certificates and that the pledgee is not the Company, the Servicer or
any Affiliate thereof. The Register shall be available for inspection by the
Company, the Servicer, the Purchasers and the Trustee, at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of a copy of the written consent of the
Trustee, the Company and the Servicer (as required under Section 11.10(b)
above) and a duly completed Commitment Transfer Supplement executed by an
assigning Purchaser and an Acquiring Purchaser, an Administrative
Questionnaire completed in respect of the Acquiring Purchaser (unless the
Acquiring Purchaser shall already be a Purchaser hereunder) and the processing
and recordation fee referred to in paragraph (b) above, the Agent shall (i)
accept such Commitment Transfer Supplement, (ii) record the information
contained therein in the Register and
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Series 1997-A Supplement
(iii) give prompt written notice thereof to the Purchasers, the Company, the
Servicer and the Trustee. No assignment shall be effective unless and until it
has been recorded in the Register as provided in this paragraph (e).
(f) Any Purchaser may sell participations to one or more
banks or other entities (the "Participants") in all or a portion of its rights
and obligations under this Supplement and the other Transaction Documents
(including all or a portion of its Commitment and VFC Certificates); provided
that any Participant shall, prior to entering into a Participation, execute
and deliver to the Company and the Trustee a participation certification in
substantially the form of Exhibit G (a "Participation Certification"); and
provided further, that (i) such Purchaser's obligations under this Agreement
shall remain unchanged, (ii) such Purchaser shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) the
Participants shall be entitled to the benefit of the cost protection
provisions contained in Sections 7.01, 7.02, 7.03 and 7.04, and shall be
required to provide the tax forms and certifications described in Section
7.03(b), to the same extent as if they were Purchasers, provided that no such
Participant shall be entitled to receive any greater amount pursuant to such
Sections than a Purchaser would have been entitled to receive in respect of
the amount of Participation sold by such Purchaser to such Participant had no
sale occurred, (iv) the Company, the Servicer, the other Purchasers, the Agent
and the Trustee, shall continue to deal solely and directly with such
Purchaser in connection with such Purchaser's rights and obligations under
this Supplement, and such Purchaser shall retain the sole right to enforce its
rights under VFC Certificates and to approve any amendment, modification or
waiver of any provision of this Supplement (other than amendments,
modifications or waivers decreasing any fees payable hereunder or the amount
of principal of or the rate at which interest is payable on the VFC
Certificates, extending any scheduled principal payment date or date fixed for
the payment of interest on the VFC Certificates or increasing or extending the
Commitments) and (v) the sum of the aggregate amount of any Commitment or
portion thereof subject to each such Participation plus the portion of the
Series 1997-A Invested Amount represented by any VFC Certificates subject to
such Participation shall not be less than $5,000,000. Each Purchaser that
grants a Participation to a Non-U.S. Person pursuant to this Subsection shall
provide the Company and the Trustee with appropriately executed copies of
Internal Revenue Service Form 4224 with respect to each Participant (i) prior
to or promptly after any such disposition and
72
Series 1997-A Supplement
(ii) upon the occurrence of any event which would require the amendment or
resubmission of any such form previously provided hereunder. No Participant
may grant a subparticipation in a VFC Certificate or this Supplement under any
circumstances.
(g) Any Purchaser may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
11.10, disclose to the Acquiring Purchaser or Participant or proposed
Acquiring Purchaser or Participant any information relating to the Seller, the
Servicer, the Trust or the Company furnished to such Purchaser by or on behalf
of such entities, provided that, prior to any such disclosure of information,
each such Acquiring Purchaser or Participant or proposed Acquiring Purchaser
or Participant shall execute a confidentiality agreement in the form of
Exhibit H.
(h) The Company shall not assign or delegate any of its
rights or duties hereunder without the prior written consent of the Agent, the
Trustee and each Purchaser, and any attempted assignment without such consent
shall be null and void.
(i) If, pursuant to this Supplement, any interest in this
Supplement or in a VFC Certificate is transferred to any Transferee which is a
Non-U.S. Person, the Purchaser making such transfer shall cause such
Transferee, concur rently with the effectiveness of such Transfer, (i) to
furnish to the assigning Purchaser (and, in the case of any Acquiring
Purchaser, the Agent, the Company and the Trustee), with copies to the
Servicer, United States Internal Revenue Service Form 4224 (or successor
applicable forms) unless a change in law has occurred prior to the date on
which such delivery would otherwise be required which renders such form
inapplicable and (ii) to agree (for the benefit of the Purchasers, the Agent,
the Servicer, the Company and the Trustee) to provide the assigning Purchaser
(and, in the case of any Acquiring Purchaser, the Agent, the Company and the
Trustee) a new Form 4224 (or successor applicable forms) upon the expiration
or obsolescence of any previously delivered form and comparable statements in
accordance with applicable United States laws and regula tions and amendments
duly executed and completed by such Transferee unless a change in law has
occurred prior to the date on which such delivery would otherwise be required
which renders such form inapplicable, and to comply from time to time with all
applicable United States laws and regulations with regard to such withholding
tax exemption.
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Series 1997-A Supplement
(j) Notwithstanding any other provisions herein, no transfer
or assignment of any interests or obligations of any Purchaser hereunder or
any grant of participations therein shall be permitted if such transfer,
assignment or grant would result in a prohibited transaction under Section
4975 of the Internal Revenue Code or Section 406 of ERISA or cause the Trust
Assets to be regarded as "plan assets" pursuant to 29 C.F.R. ss. 2510.3-101,
or require the Company or the Seller to file a registration statement with the
Securities and Exchange Commission or to qualify under the "blue sky" laws of
any state.
SECTION 11.11. Counterparts. This Supplement may be executed
in any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original, and all of which taken together shall constitute one and the same
agreement.
SECTION 11.12. Adjustments; Setoff. (a) If any Purchaser (a
"Benefitted Purchaser") shall at any time receive in respect of its Series
1997-A Purchaser Invested Amount any distribution of principal, interest,
Commitment Fees or other fees, or any interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
setoff, or otherwise) in a greater proportion than any such distribution
received by any other Purchaser, if any, in respect of such other Purchaser's
Series 1997-A Purchaser Invested Amount, or interest thereon, such Benefitted
Purchaser shall purchase for cash from the other Purchasers such portion of
each such other Purchaser's interest in the VFC Certificates, or shall provide
such other Purchasers with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Purchaser to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Purchasers; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such Benefitted
Purchaser, 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 Purchaser so purchasing a portion of the VFC
Certificate holders' Interest may exercise all rights of payment (including,
without limitation, rights of setoff) with respect to such portion as fully as
if such Purchaser were the direct holder of such portion.
(b) In addition to any rights and remedies of the
Purchasers provided by law, each Purchaser shall have the
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Series 1997-A Supplement
right, without prior notice to the Company, any such notice being expressly
waived by the Company to the extent permitted by applicable law, upon any
amount becoming due and payable by the Company hereunder or under the VFC
Certificates to setoff and appropriate and apply against any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Purchaser to or for the credit or the account
of the Company. Each Purchaser agrees promptly to notify the Company and the
Agent after any such setoff and application made by such Purchaser; provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
SECTION 11.13. Limitation of Payments by Company. The
Company's obligations under Article VII shall be limited to the funds
available to the Company which have been properly distributed to the Company
pursuant to the Agreement and any Supplement and neither the Agent nor any
Purchaser shall have any actionable claim against the Company for failure to
satisfy such obligation because it does not have funds available therefor from
amounts properly distributed.
SECTION 11.14. No Bankruptcy Petition. Each Purchaser hereby
covenants and agrees that, prior to the date which is one year and one day
after the later of (i) the last day of the Series 1997-A Amortization Period
and (ii) the date on which all Investor Certificates of each other Outstanding
Series are repaid in full, it will not institute against, or join any other
Person in instituting against, the Company any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other similar
proceedings under any Federal or state bankruptcy or similar law.
ARTICLE XII
Final Distributions
SECTION 12.01. Certain Distributions. (a) Not later than
2:00 p.m., New York City time, on the Distribu tion Date following the date on
which the proceeds from the disposition of the Receivables pursuant to subsec
tion 7.02(b) of the Agreement are deposited into the Series 1997-A Non-Principal
Collection Sub-subaccount and
75
Series 1997-A Supplement
the Series 1997-A Principal Collection Sub-subaccount, the Trustee shall
distribute such amounts pursuant to Article III of this Supplement.
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Series 1997-A Supplement
(b) Notwithstanding anything to the contrary in this
Supplement or the Agreement, any distribution made pursuant to this Section
shall be deemed to be a final distribution pursuant to Section 9.03 of the
Agreement with respect to the VFC Certificates.
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Series 1997-A Supplement
IN WITNESS WHEREOF, the Company, the Servicer, the Trustee,
the Agent and the Initial Purchasers have caused this Series 1997-A Supplement
to be duly executed by their respective officers as of the day and year first
above written.
AAM RECEIVABLES CORP.,
by /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
AMERICAN AXLE & MANUFACTURING
INC., as Servicer,
by /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, not
in its individual capacity but
solely as Trustee,
by /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as Agent,
by /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
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Series 1997-A Supplement
THE CHASE MANHATTAN BANK, as
Initial Purchaser,
by /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Series 1997-A Supplement
EXHIBIT A TO SERIES
1997-A SUPPLEMENT
AAM MASTER TRUST
FORM OF VFC CERTIFICATE, SERIES 1997-A
REGISTERED UP TO $_____________.00 SERIES
NO. VFC-[ ] 1997-A PURCHASER INVESTED AMOUNT*
(OF UP TO $_____________.00 SERIES
1997-A INVESTED AMOUNT ISSUED)
*THE SERIES 1997-A PURCHASER INVESTED AMOUNT OF
THIS VFC CERTIFICATE IS SUBJECT TO CHANGE AS DESCRIBED HEREIN.
THIS VFC CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). NEITHER THIS VFC CERTIFICATE
NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS VFC CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE POOLING AGREEMENT AND SUPPLEMENT REFERRED TO HEREIN.
This VFC Certificate evidences a fractional
undivided interest in the assets of the
AAM MASTER TRUST
the corpus of which consists of receivables representing amounts payable for
goods or services, which receivables have been purchased by AAM Receivables
Corp., a Delaware corporation, which in turn transferred and assigned such
receivables to the AAM Master Trust.
(Not an interest in or obligation of
AAM Receivables Corp., the Seller
under the Receivables Sale Agreement
or any Affiliate thereof)
This certifies that
[NAME OF CERTIFICATEHOLDER]
(the "VFC Certificateholder") is the registered owner of a fractional
undivided interest in the assets of AAM Master Trust (the "Trust") created
pursuant to the Pooling Agreement, dated as of October 29, 1997 (as the same
may
2
Series 1997-A Supplement
from time to time be amended, restated, supplemented or otherwise modified
thereafter, the "Pooling Agreement"), by and among AAM Receivables Corp., a
Delaware corporation (the "Company"), American Axle & Manufacturing, Inc., a
Delaware corporation, as servicer (the "Servicer"), and The Chase Manhattan
Bank, a New York banking corporation, not in its individual capacity but
solely as trustee (in such capacity, the "Trustee") for the Trust, as
supplemented by the Series 1997-A Supplement, dated as of October 29, 1997 (as
amended, supplemented or otherwise modified from time to time, the
"Supplement", collectively, with the Pooling Agreement, the "Agreement"), by
and among the Company, the Servicer, the Trustee, the purchasers named therein
and from time to time parties thereto (the "Purchasers") and The Chase
Manhattan Bank, a New York corporation, as initial purchaser and agent for the
Purchasers (in such capacity, the "Agent"). The corpus of the Trust consists
of receivables (the "Receivables") representing amounts payable for goods or
services and all other Trust Assets referred to in the Agreement. Although a
summary of certain provisions of the Agreement is set forth below, this VFC
Certificate does not purport to summarize the Agreement, is qualified in its
entirety by the terms and provisions of the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Trustee. A copy of the Agreement may be requested by a
holder hereof by writing to the Trustee at The Chase Manhattan Bank, 000 X.
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Structured
Finance Services. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to them in the Agreement.
This VFC Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the VFC
Certificateholder, by virtue of the acceptance hereof, assents and is bound.
It is the intent of the Servicer, the Company, each VFC
Certificateholder, each beneficial owner of a VFC Certificate (or any interest
therein) and the Trustee that for U.S. Federal, state and local income and
franchise tax purposes, and for Michigan single business tax and intangibles
tax purposes, the VFC Certificates be considered as indebtedness of the
Company secured by the Trust Assets and the Trust be treated as a mere
security device or arrangement. The VFC Certificateholder, by the acceptance
hereof, and the beneficial owner of the VFC Certificate (or any interest
therein), by acquiring a beneficial ownership
3
Series 1997-A Supplement
interest in such VFC Certificate (or interest), agree to treat the VFC
Certificates in such manner for such purposes.
This VFC Certificate is one in a Series of Investor
Certificates entitled "AAM Master Trust, VFC Certificates, Series 1997-A" (the
"VFC Certificates") representing a fractional undivided interest in the Trust
Assets, consisting of the right to receive the distributions specified in the
Supplement out of (i) the Series 1997-A Invested Percentage (expressed as a
decimal) of Collections received with respect to the Receivables and all other
funds on deposit in the Collection Account and (ii) to the extent such
interests appear in the Supplement, all other funds on deposit in the Series
1997-A Collection Subaccount and any subaccounts thereof (collectively, the
"VFC Certificate holders' Interest"). Concurrent with the issuance of the VFC
Certificates, the Trust shall also issue a Subordinated Company Interest to
the Company representing a fractional undivided interest in the Trust Assets,
consisting of the right to receive the distributions specified in the
Supplement out of (i) the Series 1997-A Invested Percentage (expressed as a
decimal) of Collections received with respect to the Receivables and all other
funds on deposit in the Collection Account and (ii) to the extent such
interests appear in the Supplement, all other funds on deposit in the Series
1997-A Collection Subaccount and any subaccounts thereof, in each case to the
extent not required to be distributed to or for the benefit of the VFC
Certificate holders (the "Series 1997-A Subordinated Interest"). The Trust
Assets are allocated in part to the VFC Certificate holders and the holders of
the Series 1997-A Subordinated Interest with the remainder allocated to the
Investor Certificate holders and the holders of the Subordinated Company
Interests of other Series, if any, and to the Company. An Exchangeable Company
Interest representing the Company's interest in the Trust was issued to the
Company pursuant to the Pooling Agreement on ________, 1997. The Exchangeable
Company Interest represents the interest in the Trust Assets not represented
by the Investor Certificates and the Subordinated Company Interests of each
Outstanding Series. The Exchangeable Company Interest may be decreased by the
Company pursuant to the Pooling Agreement in exchange for an increase in the
Invested Amount of a Class of Investor Certificates of an Outstanding Series
and an increase in the related Series Subordinated Company Interest, or one or
more newly issued Series of Investor Certificates and the related newly issued
Series Subordinated Company Interest, upon the conditions set forth in the
Agreement.
4
Series 1997-A Supplement
Distributions with respect to this VFC Certificate shall be
paid by the Agent in immediately available funds to the VFC Certificateholder
at the office of the Agent set forth in the Agreement. Final payment of this
VFC Certificate shall be made only upon presentation and surrender of this VFC
Certificate at the office or agency specified in the notice of final
distribution delivered by the Trustee to the VFC Certificate holders in
accordance with the Agreement.
This VFC Certificate does not represent an obligation of, or
an interest in, the Company, the Servicer or any Affiliate of either of them.
The transfer of this VFC Certificate shall be registered in
the Certificate Register upon surrender of this VFC Certificate for
registration of transfer at any office or agency maintained by the Transfer
Agent and Registrar accompanied by a written instrument of transfer, in a form
satisfactory to the Trustee and the Transfer Agent and Registrar, duly
executed by the VFC Certificateholder or the VFC Certificateholder's attorney,
and duly authorized in writing with such signature guaranteed, and thereupon
one or more new VFC Certificates of authorized denominations and of like
aggregate Fractional Undivided Interests will be issued to the designated
transferee or transferees. In addition, the Agent shall maintain at one of its
offices in the City of New York the Register for the recordation of the names
and addresses of the Purchasers, and the Commitment of, and the principal
amount of VFC Certificates issued to, each Purchaser.
It is understood and agreed by the VFC Certificateholder and
the Agent that each will deliver certain United States Internal Revenue
Service forms, including Form 4224, Form W-8 or W-9, as provided in Section
7.03 of the Supplement, and that failure to provide such Forms may entitle the
Servicer and the Trustee to withhold amounts in respect of taxes.
The Company, the Trustee, the Servicer, the Transfer Agent
and Registrar, the Agent and any agent of any of them, may treat the person
whose name is recorded in the Register as a Purchaser for all purposes of the
Supplement, notwithstanding notice to the contrary (other than notice in
connection with an assignment effected or to be effected in accordance with
Section 11.10 of the Supplement).
It is expressly understood and agreed by the Company and the
VFC Certificateholder that (i) the Agreement
5
Series 1997-A Supplement
is executed and delivered by the Trustee, not individually or personally but
solely as Trustee of the Trust, in the exercise of the powers and authority
conferred and vested in it, (ii) the representations, undertakings and
agreements made on the part of the Trust in the Agreement are made and
intended not as personal representations, undertakings and agreements by the
Trustee, but are made and intended for the purpose of binding only the Trust,
(iii) nothing herein contained shall be construed as creating any liability of
the Trustee, individually or personally, to perform any covenant either
expressed or implied made on the part of the Trust in the Agreement, all such
liability, if any, being expressly waived by the parties who are signatories
to the Agreement and by any Person claiming by, through or under such parties;
provided, however, the Trustee shall be liable in its individual capacity for
its own wilful misconduct or gross negligence and for any tax assessed against
the Trustee based on or measured by any fees, commission or compensation
received by it for acting as Trustee and (iv) under no circumstances shall the
Trustee be personally liable for the payment of any indebtedness or expenses
of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under the
Agreement.
The holder of this VFC Certificate is authorized to record
the date and amount of each increase and decrease in the Series 1997-A
Purchaser Invested Amount with respect to such holder on the schedules annexed
hereto and made a part hereof and any such recordation shall constitute prima
facie evidence of the accuracy of the information so recorded, absent manifest
error, provided that the failure of the holder of this VFC Certificate to make
such recordation (or any error in such recordation) shall not affect the
obligations of the Company, the Servicer or the Trustee under the Agreement.
This VFC Certificate shall be construed in accordance with
and governed by the laws of the State of New York without reference to any
conflict of law principles.
By acceptance of this VFC Certificate, the VFC
Certificateholder hereby agrees that, prior to the date which is one year and
one day after the later of (i) the last day of the Series 1997-A Amortization
Period and (ii) the date on which all Investor Certificates of each other
Outstanding Series are repaid in full, it will not institute against, or join
any other Person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
6
Series 1997-A Supplement
proceedings under any federal or state bankruptcy or similar law.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this VFC
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
IN WITNESS WHEREOF, the Company has caused this VFC
Certificate to be duly executed.
Dated: ___________ , 1997
AAM RECEIVABLES CORP.,
as authorized pursuant to
Section 5.01 of the Pooling
Agreement,
by
------------------------------
Title
7
Series 1997-A Supplement
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the VFC Certificates described in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, not
in its individual capacity but
solely as Trustee,
by
------------------------------
Authorized Signatory
OR
by
------------------------------
Authenticating Agent
by
------------------------------
Authorized Signatory
Schedule 1
to VFC Certificate
Increase Decrease
in Series in Series
1997-A 1997-A Series 1997-A
Purchaser Purchaser Purchaser
Invested Invested Invested Notation
Date Amount Amount Amount Made By
==================== ====================== ===================== ========================== =================
EXHIBIT B TO SERIES
1997-A SUPPLEMENT
[FORM OF COMMITMENT TRANSFER SUPPLEMENT]
COMMITMENT TRANSFER SUPPLEMENT, dated as of [ , ] among [ ]
(the "Transferor"), each purchaser listed as an Acquiring Purchaser on the
signature pages hereof (each, an "Acquiring Purchaser") and [ ], a [ ]
corporation, as Agent for the Purchasers under the Supplement described below
(in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS this Commitment Transfer Supplement is being
executed and delivered in accordance with subsection 11.10(b) of the Series
1997-A Supplement, dated as of October 29, 1997 (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the
"Supplement"; terms defined therein being used herein as therein defined),
among the Company, the Servicer, the Transferor, the other Purchasers from
time to time parties thereto, the Trustee and the Agent, to the Pooling
Agreement among the Company, the Servicer and the Trustee (as the same may be
from time to time amended, supplemented or otherwise modified, the "Pooling
Agreement");
WHEREAS each Acquiring Purchaser (if it is not already a
Purchaser party to the Supplement) wishes to become a Purchaser party to the
Supplement; and
WHEREAS the Transferor is selling and assigning to each
Acquiring Purchaser, rights, obligations and commitments under the Supplement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon the execution and delivery of this Commitment
Transfer Supplement by each Acquiring Purchaser, the Transferor and
the Agent (the date of such execution and delivery, the "Transfer
Issuance Date"), each Acquiring Purchaser shall be a Purchaser party
to the Supplement for all purposes thereof.
2. This Commitment Transfer Supplement is being delivered to
the Agent together with (i) if the
2
Series 1997-A Supplement
Acquiring Purchaser is organized under the laws of a jurisdiction
outside the United States, the forms specified in Section 7.03(f) of
the Supplement, duly completed and executed by such Acquiring
Purchaser, (ii) if the Acquiring Purchaser is not already a Purchaser
under the Supplement, an Administrative Questionnaire in the form of
Exhibit C to the Supplement and (iii) a processing and recordation
fee of $3,500.
3. The Transferor acknowledges receipt from each Acquiring
Purchaser of an amount equal to the purchase price, as agreed between
the Transferor and such Acquiring Purchaser (the "Purchase Price"),
of the portion being purchased by such Acquiring Purchaser (such
Acquiring Purchaser's "Purchased Percentage") of the undivided
interest in the VFC Certificate owned by, and other amounts owing to,
the Transferor under the Supplement. The Transferor hereby
irrevocably sells, assigns and transfers to each Acquiring Purchaser,
without recourse, representation or warranty (except as set forth in
paragraph 8(i) below), and each Acquiring Purchaser hereby
irrevocably purchases, takes and assumes from the Transferor, such
Acquiring Purchaser's Purchased Percentage of the commitment of the
Transferor to increase its VFC Invested Amount under, and the portion
of the undivided interest in, the VFC Certificate, Series 1997-A
owned by, and other amounts owing to, the Transferor, in each case
under the Supplement together with all instruments, documents and
collateral security pertaining thereto.
4. The Transferor has made arrangements with each Acquiring
Purchaser with respect to (i) the portion, if any, to be paid, and
the date or dates for payment, by the Transferor to such Acquiring
Purchaser of any Commitment Fees heretofore received by the
Transferor pursuant to the Supplement prior to the Transfer Issuance
Date and (ii) the portion, if any, to be paid, and the date or dates
for payment, by such Acquiring Purchaser to the Transferor of
Commitment Fees or Series 1997-A Monthly Interest received by such
Acquiring Purchaser pursuant to the Supplement from and after the
Transfer Issuance Date.
5. From and after the Transfer Issuance Date, amounts that
would otherwise by payable to or for the account of the Transferor
pursuant to the Supplement shall, instead, be payable to or for the
account of the Transferor and the Acquiring Purchasers, as the case
3
Series 1997-A Supplement
may be, in accordance with their respective interests as reflected in
this Commitment Transfer Supplement, whether such amounts have
accrued prior to the Transfer Issuance Date or accrue subsequent to
the Transfer Issuance Date.
6. Prior to or concurrently with the execution and delivery
hereof, the Agent will, at the expense of the Transferor, provide to
each Acquiring Purchaser (if it is not already a Purchaser party to
the Supplement) photocopies of all documents delivered to the Agent
on the Issuance Date in satisfaction of the conditions precedent set
forth in the Supplement.
7. Each of the parties to this Commitment Transfer
Supplement agrees that at any time and from time to time upon the
written request of any other party, it will execute and deliver such
further documents and do such further acts and things as such other
party may reasonably request in order to effect the purposes of this
Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer
Supplement, the Transferor and each Acquiring Purchaser confirm to
and agree with each other and the Purchasers as follows: (i) the
Transferor warrants that it is the legal and beneficial owner of the
interest being assigned hereby free and clear of any adverse claim
and that its Commitment, and the outstanding balances of its VFC
Certificates, in each case without giving effect to assignments
thereof which have not become effective, are [ ] and [ ],
respectively; (ii) except as set forth in (i) above, the Transferor
makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in
or in connection with the Supplement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the
Supplement, any other Transaction Document or any other instrument or
document furnished pursuant hereto or thereto, or the financial
condition of the Seller, the Company or the Servicer, or the
performance or observance by the Seller, the Company or the Servicer
of any of its obligations under the Supplement, any other Transaction
Document or any other instrument or document furnished pursuant
hereto or thereto; (iii) the Acquiring Purchaser represents and
warrants that it is legally authorized to enter into this Commitment
Transfer Supplement; (iv) the Acquiring Purchaser confirms that
4
Series 1997-A Supplement
it has received a copy of the Supplement, the other Transaction
Documents and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into this Commitment Transfer Supplement; (v) the Acquiring Purchaser
will independently and without reliance upon the Agent, the Trustee,
the assigning Purchaser or any other Purchaser 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 Supplement or any other Transaction Document; (vi)
the Acquiring Purchaser appoints and authorizes the Agent and the
Trustee to take such action as agent on its behalf and to exercise
such powers under the Supplement as are delegated to the Agent and
the Trustee, respectively, by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) the Acquiring
Purchaser agrees that it will perform in accordance with their terms
all the obligations which by the terms of the Supplement are required
to be performed by it as a Purchaser.
9. The Acquiring Purchaser confirms that, by executing and
delivering this Commitment Transfer Supplement, it shall be deemed to
have made the representations and warranties in Section 8.06 of the
Supplement.
10. Schedule I hereto sets forth the revised Commitment
Percentages of the Transferor and each Acquiring Purchaser as well as
administrative information with respect to each Acquiring Purchaser.
11. This Commitment Transfer Supplement shall be governed
by, and construed in accordance with, the laws
5
Series 1997-A Supplement
of the State of New York without giving effect to
principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this
Commitment Transfer Supplement to be executed by their respective duly
authorized officers as of the date first set forth above.
[NAME OF SELLING PURCHASER],
by
------------------------------
Title
[NAME OF PURCHASING
PURCHASER], as Acquiring
Purchaser,
by
------------------------------
Title
[ ], as
Agent,
by
------------------------------
Title
6
SCHEDULE I
TO EXHIBIT B
TO Series 1997-A
SUPPLEMENT
----------------
LIST OF ADDRESSES FOR NOTICES
AND OF COMMITMENT PERCENTAGES
[ , as Agent
Address: [ ]
[ ]
Attention of
Telecopier:
[TRANSFEROR]
Address:
Prior Commitment Percentage:
Revised Commitment Percentage:
[ACQUIRING PURCHASER]
Address:
[Prior] Commitment Percentage:
[Revised Commitment Percentage:]
1
EXHIBIT C TO SERIES
1997-A SUPPLEMENT
[Form of]
[ ]
ADMINISTRATIVE QUESTIONNAIRE
Please accurately complete the following information and return via Telecopy
to the attention of [ ] at [ ] as soon as possible,
at Telecopy
No. ( ) [ ].
-------------------------------------------------------------------------------
PURCHASER LEGAL NAME TO APPEAR IN DOCUMENTATION: ______________________________
GENERAL INFORMATION:
Institution Name: ______________________________________________________________
Street Address: ________________________________________________________________
City, State, Zip Code: _________________________________________________________
POST-CLOSING, ONGOING CREDIT CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact: _______________________________________________________________
Street Address: ________________________________________________________________
City, State, Zip Code: _________________________________________________________
Phone Number: __________________________________________________________________
Telecopy Number: _______________________________________________________________
Backup Contact: ________________________________________________________________
Street Address: ________________________________________________________________
City, State, Zip Code: _________________________________________________________
Phone Number: __________________________________________________________________
Telecopy Number: _______________________________________________________________
2
Series 1997-A Supplement
TAX WITHHOLDING:
Nonresident Alien ____________________ Y* _______________________ N
* Form 4224 Enclosed
Tax ID Number _________________________
POST-CLOSING, ONGOING ADMINISTRATIVE CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - PAYMENTS, FEES, ETC.
Contact: _______________________________________________________________________
Street Address: ________________________________________________________________
City, State, Zip Code: _________________________________________________________
Phone Number: __________________________________________________________________
Telecopy Number: _______________________________________________________________
PAYMENT INSTRUCTIONS:
Name of Bank to which funds are to be transferred:
________________________________________________________________________________
Routing Transit/ABA number of Bank to which funds are to be transferred:
________________________________________________________________________________
Name of Account, if applicable:
________________________________________________________________________________
Account Number: ________________________________________________________________
Additional information: ________________________________________________________
It is very important that all the above information be accurately completed
and that this questionnaire be returned
3
Series 1997-A Supplement
to the person specified in the introductory paragraph of this questionnaire as
soon as possible. If there is someone other than yourself who should receive
this questionnaire, please notify us of that person's name and telecopy number
and we will telecopy a copy of the questionnaire. If you have any questions
about this form, please call [ ] at ( ) [ ].
1
EXHIBIT F TO SERIES
1997-A SUPPLEMENT
FORM OF ISSUANCE/INCREASE NOTICE
________, 199__
[Agent/Address of Agent]
Telecopier:
Attention:
Ladies and Gentlemen:
Reference is hereby made to the Series 1997-A Supplement,
dated as of October 29, 1997 (as amended or supplemented, the "Supplement"),
among AAM Receivables Corp. (the "Company"), American Axle & Manufacturing,
Inc. (the "Servicer"), the purchasers named therein and from time to time
party thereto, The Chase Manhattan Bank, as Agent and Initial Purchaser, and
The Chase Manhattan Bank, as Trustee. Capitalized terms used in this Notice
and not otherwise defined herein shall have the meanings assigned thereto in
the Supplement.
This Notice constitutes the notice required in connection
with [the initial issuance] [any Increase] pursuant to subsection 2.05(a) of
the Supplement.
The [Servicer] [Company] hereby requests [a purchase in
respect of the initial issuance of Investor Certificates] [an Increase] be
made by the Purchasers on ______, ___ in the aggregate amount of $_______,
such [purchase] [Increase] to be allocated to a [Floating Tranche] [Eurodollar
Tranche with a [Eurodollar Period of one month] or [NIBO Period of [one] [two]
[three] weeks]].
The [Servicer] [Company] hereby represents and
warrants, as of the date of such [purchase] [Increase] after
2
giving effect thereto, that the conditions set forth in subsections 2.05(a)
and (b) of the Supplement with respect to such [purchase] [Increase] have been
satisfied.
IN WITNESS WHEREOF, the undersigned has caused this Notice
to be executed by its duly authorized officer as of the date first above
written.
[AMERICAN AXLE & MANUFACTURING,
INC., as Servicer] [AAM
RECEIVABLES CORP.]
By:___________________________
Name:
Title:
1
EXHIBIT G TO SERIES
1997-A SUPPLEMENT
PARTICIPATION CERTIFICATION
AAM Receivables Corp.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with out proposed entrance into a
participation in respect of the VFC Certificate held by [insert name of
Purchaser] (the "Participation") and pursuant to Section 11.10(f) of the AAM
Master Trust Series 1997-A Supplement (the "Supplement") to the Pooling
Agreement (the "Agreement"), dated as of October 29, 1997, among AAM
Receivables Corp. (the "Company"), American Axle & Manufacturing, Inc., as
Servicer, and The Chase Manhattan Bank, as Trustee, we confirm that:
1. Certain terms of the Participation are as
follows:
(a) The effective date of the Participation
is _______________ .
(b) The expected maturity date of the
Participation is ________________ .
(c) The aggregate principal amount of the VFC
Certification being participated is
$ ____________ .
2. We are not a trust, estate, partnership, or "S
Corporation" (within the meaning of Section 1361(a) of the Code) for United
States federal income tax purposes, or if we are such an entity, the value of
our interest in the VFC Certificates is less than 50% of the total value of
all our assets.
3. We have acquired the Participation described herein for
our own account and we are and will remain the sole beneficial owner of such
Participation, or any interest therein, at all times.
2
4. We understand that we may not at any time grant any
participation or other interest in the Participation or otherwise subdivide
our interest therein, and we further understand that the Participation is not
transferable unless we obtain the prior written consent of the Company and the
Trustee and that we may not sell, assign, trade, pledge or otherwise transfer
the Participation except in accordance with and to the extent permitted under
Section 11.10 of the Supplement.
5. We have neither acquired nor will we sell, trade or
transfer any interest in the Participation, the VFC Certificate or the
Supplement or cause an interest in the Participation, VFC Certificate or the
Supplement to be marketed on or through an "established securities market"
within the meaning of Section 7704(b)(1) of the Code (and Treasury regulations
promulgated thereunder) including, without limitation, an over-the-counter or
an interdealer quotation system that regularly disseminates firm buy or sell
quotations. We are aware that counsel's opinion to the effect that the Trust
will not be treated as a publicly traded partnership taxable as a corporation
is dependent in part on the accuracy of the preceding sentence.
All capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Supplement or the Agreement, as the
case may be.
You are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours
[PARTICIPANT]
By:
------------------------------
Name:
Title:
1
EXHIBIT H TO SERIES
1997-A SUPPLEMENT
Form of Confidentiality Agreement
(Telecopy to [ ] at - )
[Name of assignor Purchaser]
Ladies and Gentlemen:
You are prepared to furnish to the undersigned [describe
information to be provided]. The [described information] and any other
materials, documents and information which you, the Seller, the Servicer, the
Company and the Trustee, on behalf of the Trust, or any of your or their
respective affiliates may furnish to us in connection with our evaluation of a
possible assignment or participation are collectively called the
"Information". Terms used herein that are not otherwise defined herein shall
have the meaning ascribed to such terms in the Pooling Agreement, dated as of
October 29, 1997 among American Axle & Manufacturing, Inc., AAM Receivables
Corp. and The Chase Manhattan Bank, as Trustee.
We agree to keep confidential, and to not publish, disclose
or otherwise divulge, the Information (and to cause our officers, directors,
employees, agents and representatives to keep confidential, and to not
publish, disclose or otherwise divulge, the Information) and, at your, the
Seller's, the Servicer's, the Company's or the Trustee's request (except as
provided below), promptly to return to you, the Seller, the Servicer, the
Company or the Trustee (as applicable), or destroy, the Information and all
copies thereof, extracts therefrom and analyses or other materials based
thereon, except that we shall be permitted to disclose Information (i) to such
of our officers, directors, employees, agents and representatives as need to
know such Information in connection with our evaluation of a possible
assignment or participation (who will be informed of the confidential nature
of the Information); (ii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, or requested by any
bank regulatory authority (in any which event we will notify you, the Seller,
the Servicer, the Company or the Trustee to the extent not prohibited by
applicable law); (iii) to the extent such Information (A) becomes publicly
available other than as a result of a
2
breach of this agreement, (B) becomes available to us on a non-confidential
basis from a source other than you, the Seller, the Servicer, the Company or
the Trustee or any of your Affiliates or (C) was available to us on a non-
confidential basis prior to its disclosure to us by you; (iv) to the extent
you, the Seller, the Servicer, the Company and the Trustee shall have
consented to such disclosure in writing; or (v) pursuant to the last paragraph
of this letter.
We further agree that we will use the Information (except to
the extent the conditions referred to in subclauses (A), (B) and (C) of clause
(iii) above have been met and as provided in the last paragraph of this
letter) only to evaluate a possible assignment or participation.
We further agree, in the event we participate in an
assignment or participation, that we will not disclose any of the Information
to any assignee or participant or proposed assignee or participant unless and
until such assignee or participant or proposed assignee or participant first
executes and delivers to you a letter substantially in the form hereof.
Our obligations under this letter are for the benefit of
you, the Seller, the Servicer, the Company and the Trustee and your and their
Affiliates and you and each of them may pursue remedies against us for the
breach hereof, either in equity or at law.
Notwithstanding anything to the contrary contained above if
we participate in an assignment or participation, we will be entitled to
retain all Information and to use it in monitoring our investment and in
exercising our rights with respect thereto. This agreement shall be governed
by the laws of the State of New York.
Name of Recipient:
by:
-----------------------------
Authorized Officer
------------------------------
[Name of Assignee/Participant/
Proposed Assignee/Proposed
Participant]
3
Schedule 1 to the
Series 1997-A Supplement
COMMITMENTS
Purchaser Commitment
The Chase Manhattan Bank $125,000,000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
4
Schedule 2 to the
Series 1997-A Supplement
Trust Accounts
Account Account Number
AAM Collection Account 507-831454
AAM Company Collection Sub-Account 507-830555
AAM 97-A Collection Subaccount 507-831462
AAM 97-A Principal Collection Sub- 507-831470
subaccount
AAM 97-A Non-Principal Collection Sub- 507-831497
subaccount
AAM 97-A Accrued Interest Sub- 507-831578
subaccount
