EXHIBIT 10.16(a)
EXECUTION COPY
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AAM MASTER TRUST
SERIES 1999-A SUPPLEMENT
TO
POOLING AGREEMENT
Among
AAM RECEIVABLES CORP.
AMERICAN AXLE & MANUFACTURING, INC.
as Servicer
and
THE CHASE MANHATTAN BANK
as Trustee
Dated as of March 25, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
SECTION 1.01 Definitions..................................................1
ARTICLE II
Designation of VFC Certificates; Purchase and
Sale of the VFC Certificates
SECTION 2.01 Designation ................................................16
SECTION 2.02 The VFC Certificates and Series 1999-A
Subordinated Interest ....................................16
SECTION 2.03 Purchases of Interests in the VFC
Certificates and the Series 1999-A
Subordinated Interest ....................................17
SECTION 2.04 Delivery ...................................................17
SECTION 2.05 Procedure for Initial Issuance and for
Increasing the Series 1999-A Invested
Amount ...................................................18
SECTION 2.06 Procedure for Decreasing the Series
1999-A Invested Amount; Optional
Termination ..............................................19
SECTION 2.07 Reductions of the Commitments...............................20
SECTION 2.08 Interest; Commitment Fee....................................21
SECTION 2.09 Indemnification by the Company and
the Servicer .............................................22
ARTICLE III
Article III of the Agreement
SECTION 3A.02. Establishment of Trust Accounts.............................23
SECTION 3A.03. Daily Allocations...........................................24
SECTION 3A.04. Determination of Interest...................................26
SECTION 3A.05. Determination of Series 1999-A Monthly
Principal ................................................28
SECTION 3A.06. Applications ...............................................29
ARTICLE IV
Distributions and Reports
SECTION 4A.01. Distributions...............................................31
i
SECTION 4A.02. Daily Reports...............................................31
SECTION 4A.03. Statements and Notices......................................32
ARTICLE V
Additional Early Amortization Events
SECTION 5.01 Additional Early Amortization Events........................33
ARTICLE VI
Servicing Fee
SECTION 6.01 Servicing Compensation.....................................36
ARTICLE VII
Change in Circumstances
SECTION 7.01 Illegality ................................................36
SECTION 7.02 Requirements of Law........................................37
SECTION 7.03 Taxes .....................................................39
SECTION 7.04 Indemnity .................................................41
SECTION 7.05 Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate ...........................42
SECTION 7.06 Limitation ................................................43
ARTICLE VIII
Covenants, Representations and Warranties
SECTION 8.01 Representations and Warranties of the
Company and the Servicer...................................43
SECTION 8.02 Covenants of the Company and the Servicer..................43
SECTION 8.03 Covenants of the Servicer..................................44
SECTION 8.04 Covenant of the Company....................................45
SECTION 8.05 Obligations Unaffected.....................................45
SECTION 8.06 Representations and Warranties of
the Initial Purchasers and any
Acquiring Purchasers......................................46
ARTICLE IX
Conditions Precedent
SECTION 9.01 Conditions Precedent to Effectiveness
of Supplement ...........................................46
ARTICLE X
The Agent
ii
SECTION 10.01 Appointment ...............................................50
SECTION 10.02 Delegation of Duties.......................................50
SECTION 10.03 Exculpatory Provisions.....................................50
SECTION 10.04 Reliance by Agent..........................................51
SECTION 10.05 Notice of Servicer Default or Early
Amortization Event or Potential
Early Amortization Event ................................51
SECTION 10.06 Non-Reliance on Agent and Other
Purchasers ..............................................52
SECTION 10.07 Indemnification............................................52
SECTION 10.08 Agent in Its Individual Capacity...........................53
SECTION 10.09 Successor Agent............................................53
ARTICLE XI
Miscellaneous
SECTION 11.01 Ratification of Agreement..................................53
SECTION 11.02 Governing Law..............................................53
SECTION 11.03 Further Assurances.........................................53
SECTION 11.04 Payments...................................................54
SECTION 11.05 Costs and Expenses.........................................54
SECTION 11.06 No Waiver; Cumulative Remedies.............................54
SECTION 11.07 Amendments.................................................54
SECTION 11.08 Severability...............................................56
SECTION 11.09 Notices....................................................56
SECTION 11.10 Successors and Assigns.....................................56
SECTION 11.11 Counterparts...............................................60
SECTION 11.12 Adjustments; Setoff........................................61
SECTION 11.13 Limitation of Payments by Company..........................61
SECTION 11.14 No Bankruptcy Petition.....................................62
ARTICLE XII
Final Distributions
SECTION 12.01 Certain Distributions......................................62
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Series 1999-A Supplement
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SERIES 1999-A SUPPLEMENT dated as of March 25,
1999 (this "Supplement"), among AAM RECEIVABLES
CORP., a Delaware corporation (the "Company"),
AMERICAN AXLE & MANUFACTURING, INC., a Delaware
corporation, as servicer (the "Servicer"), the
financial institutions parties hereto on the date
hereof (the "Initial Purchasers") and the financial
institutions from time to time parties hereto as
purchasers pursuant to Section 11.10, THE CHASE
MANHATTAN BANK, a New York banking 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, as amended and
restated as of the date hereof (as amended, supplemented or otherwise modified
from time to time, 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, and the Trustee 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. (a) The following words and phrases shall have
the following meanings with respect to Series 1999-A and the definitions of such
terms are applicable to
1
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 1999-A,
the period from and including a Distribution 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.
"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 1999-A
Monthly Interest to be distributed on the next succeeding Distribution Date,
(iii) the Series 1999-A Monthly Servicing Fee, (iv) the aggregate amount of all
previously accrued, unpaid and unallocated Series 1999-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
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Series 1999-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 Eurodollar Tranches, in the case of
each of the first ten Business Days in the Accrual Period, one-tenth of the
Series 1999-A Monthly Interest determined as of such Business Day, (b) 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, (c) in the case of each of the first ten Business Days in the
Accrual Period, one-tenth of the Series 1999-A Monthly Servicing Fee (in the
case of each of the foregoing clauses (a) through (c), 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)), (d) the
aggregate amount of all previously accrued, unpaid and unallocated Series 1999-A
Monthly Interest for prior Distribution Dates, (e) the aggregate amount of all
accrued, unpaid and unallocated Additional Interest and (f) all Program Costs
that have accrued since the preceding Business Day.
"Acquiring Purchaser" shall have the meaning assigned in
subsection 11.10(b).
"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, the aggregate Principal Amount of all Eligible
Receivables in the Trust at the end of the Business day immediately preceding
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,
1.25% per annum.
"Article VII Costs" shall mean any amounts due pursuant to
Article VII.
3
"Available Commitment" shall mean, with respect to any
Business Day, the (i) Aggregate Commitment Amount on such Business Day minus
(ii) the Series 1999-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 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) 1.50 times the Certificate
Rate 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 each
Eurodollar Tranche) of One-Month LIBOR then in effect 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 (as defined in the
Pooling Agreement).
"Commitment" shall mean, as to any Purchaser, its obligation
to maintain and, subject to certain conditions, increase, its Series 1999-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 1999-A Amortization
Period commences.
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"Commitment Reduction" shall have the meaning assigned in
subsection 2.07(a).
"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 1999-A Monthly Interest
determined as of such day, (B) the aggregate amount of all previously accrued,
unpaid and unallocated Series 1999-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 1999-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 1999-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 product of (i) the Series 1999-A Invested Amount (calculated
without regard to clauses (d) and (e) of the definition of Series 1999-A
Purchaser Invested Amount) allocable to Eurodollar Tranches on such day divided
by 360 and (ii) One-Month LIBOR plus the Applicable Margin on such day in effect
with respect thereto; provided, however, that for the purposes of calculating
Series 1999-A Monthly Interest, the "Daily Interest Expense" for any day
following the date of determination shall be based on the Series 1999-A Invested
Amount and the Certificate Rate as of or in effect on such date of
determination; provided
5
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 1999-A Invested Amount on such day
divided by 365 and (y) the Certificate Rate 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 Majority Purchasers and the
Rating Agency, provided that if such other Obligor is of a credit quality
comparable to GM, then such approval shall not be unreasonably withheld.
"Dilution Horizon" shall mean (i) for the period from the
Issuance Date until the Settlement Report Date occurring in July 1999 75 days as
representing the time period it takes the Seller to recognize a Dilution
Adjustment, and (ii) for each six-month period (beginning and ending on a
Settlement Report Date) to occur after such initial period, the number of days
(expressed as a dollar weighted average based upon the Dilution Adjustments for
such period), as determined by the Servicer in accordance with procedures
utilized to calculate the dilution horizon in clause (i) above; provided, that
in no event shall the Dilution Horizon be less than 30 days.
"Dilution Horizon Factor" shall mean (i) for the period from
the Issuance Date until the Settlement Report Date occurring in July 1999, 2.50
months, and (ii) for each six-month period (beginning and ending on a Settlement
Report Date) to occur after such initial period, a fraction, the numerator of
which is the Dilution Horizon for such period and the denominator of which is
30.
"Dilution Period" shall mean, as of any Settlement Report Date
and continuing until (but not including) the next
6
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 (i) Dilution Adjustments made during such Settlement Period and (ii)
the amount of Receivables due from GM and Ford which have aged more than 150
days from their original due date 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 highest Dilution Period that occurred during the last
three Settlement Periods occurring prior to such earlier
Settlement Report Date.
"Distribution Date" shall mean, the 15th day of the month, or
if such 15th day is not a Business Day, the next succeeding Business Day, and in
the case any Eurodollar Period ends on another day, it shall also mean the last
day of such Eurodollar Period.
7
"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 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 each portion of the Series
1999-A Invested Amount for which the Series 1999-A Monthly Interest is
calculated by reference to One-Month LIBOR for a particular Eurodollar Period.
8
"Excess Program Costs" shall have the meaning assigned to such
term within the definition of "Program Costs".
"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 Purchasers" shall have the meaning specified in the
recitals hereto.
"Initial Series 1999-A Invested Amount" shall mean the amount
set forth in the initial notice delivered pursuant to Section 2.05 as the
"Initial Series 1999-A Invested Amount".
"Initial Series 1999-A Subordinated Interest Amount" shall
mean the Series 1999-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 1999-A,
the Series 1999-A Invested Amount.
"Issuance Date" shall mean March 29, 1999.
"Majority Purchasers" shall mean, on any day, Purchasers
having, in the aggregate, more than 50% of the Aggregate Commitment Amount.
"Maximum Commitment Amount" shall mean $153,000,000.
"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 1999-A Required Subordinated
Amount as of such day.
"Minimum Ratio" shall mean 5.0%.
9
"Monthly Interest Payment" shall have the meaning assigned in
subsection 3A.06(b).
"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 1999-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).
"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 1999-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 Initial Purchaser and each
Acquiring Purchaser.
10
"Rating Agency" shall mean DCR or any such other rating agency
that has rated the VFC Certificates, as applicable.
"Rating Agency Condition" shall, with respect to any action,
have the meaning assigned in Section 1.01 of the Agreement.
"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 November, 2003.
"Series 1999-A" shall mean the Series of Investor Certificates
and Subordinated Company Interest, the Principal Terms of which are set forth in
this Supplement.
"Series 1999-A Accrued Interest Sub-subaccount" shall have the
meaning assigned in subsection 3A.02(a).
"Series 1999-A Adjusted Invested Amount" shall mean, as of any
date of determination, (i) the Series 1999-A Invested Amount on such date, minus
(ii) the amount on deposit in the Series 1999-A Principal Collection
Sub-subaccount on such date up to a maximum of the Series 1999-A Invested
Amount.
"Series 1999-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 1999-A.
"Series 1999-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 1999-A.
"Series 1999-A Allocated Receivables Amount" shall mean, on
any date of determination, the lower of (i) the Series 1999-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
1999-A Target Receivables Amount on such day and the denominator of which is the
Aggregate Target Receivables Amount on such day.
"Series 1999-A Amortization Period" shall mean the period
commencing on the Business Day following the earliest 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
1999-A Invested Amount shall have been reduced to zero
11
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
1999-A Termination Date.
"Series 1999-A Collections" shall mean, with respect to any
Business Day, an amount equal to the product of (i) the Series 1999-A Invested
Percentage on such Business Day and (ii) Aggregate Daily Collections.
"Series 1999-A Collection Subaccount" shall have the meaning
assigned in subsection 3A.02(a).
"Series 1999-A Invested Amount" shall mean, as of any date of
determination, the sum of the Series 1999-A Purchaser Invested Amounts of all
Purchasers on such date.
"Series 1999-A Invested Percentage" shall mean, with respect
to any Business Day (i) during the Series 1999-A Revolving Period, the
percentage equivalent of a fraction, the numerator of which is the Series 1999-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 1999-A Amortization Period, the percentage equivalent of a
fraction, the numerator of which is the Series 1999-A Allocated Receivables
Amount as of the end of the last Business Day of the Series 1999-A Revolving
Period (provided that if during the Series 1999-A Amortization Period, the
amortization periods of all other Outstanding Series which were outstanding
prior to the commencement of the Series 1999-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 1999-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.
"Series 1999-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 1999-A Monthly Interest Distribution" shall have the
meaning assigned in subsection 3A.04(a).
"Series 1999-A Monthly Principal Payment" shall have the
meaning assigned in Section 3A.05.
"Series 1999-A Monthly Servicing Fee" shall have the meaning
assigned in Section 6.01.
12
"Series 1999-A Non-Principal Collection Sub-subaccount" shall
have the meaning assigned in subsection 3A.02(a).
"Series 1999-A Principal Collection Sub-subaccount" shall have
the meaning assigned in subsection 3A.02(a).
"Series 1999-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
1999-A Invested Amount, and with respect to such Purchaser on any date of
determination thereafter, an amount equal to (a) such Purchaser's Series 1999-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 1999-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 1999-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 1999-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 1999-A
Allocable Recoveries Amount applied to such Purchaser on or prior to such date
pursuant to subsection 3A.05(c)(i).
"Series 1999-A Required Reserves Ratio" shall mean, the
greater of (i) the Dilution Reserve Ratio and (ii) the Minimum Ratio.
"Series 1999-A Required Subordinated Amount" shall mean, (a)
on any date of determination during the Series 1999-A Revolving Period, an
amount equal to the sum of:
(i) an amount equal to the product of (A) the Series 1999-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 1999-A Required Reserves Ratio and the
denominator of which is one minus the Series 1999-A Required Reserves
Ratio;
(ii) the product of (A) the Series 1999-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
1999-A Required Reserves Ratio; and
(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 1999-A Invested Amount on
13
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
1999-A Required Reserves Ratio;
and (b) on any date of determination during the Series 1999-A Amortization
Period, an amount equal to the Series 1999-A Required Subordinated Amount on the
last Business Day of the Series 1999-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 1999-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 commence or automatically commences, (ii) the Optional Termination
Date and (iii) the Commitment Termination Date.
"Series 1999-A Subordinated Interest" shall have the meaning
assigned in subsection 2.02(b).
"Series 1999-A Subordinated Interest Amount" shall mean, for
any date of determination, an amount equal to (i) the Series 1999-A Allocated
Receivables Amount minus (ii) the Series 1999-A Adjusted Invested Amount.
"Series 1999-A Subordinated Interest Increase Amount" shall
have the meaning assigned in subsection 2.05(a).
"Series 1999-A Subordinated Interest Reduction Amount" shall
have the meaning assigned in subsection 2.06(b).
"Series 1999-A Target Receivables Amount" shall mean, on any
date of determination, the sum of (i) the Series 1999-A Adjusted Invested Amount
on such day and (ii) the Series 1999-A Required Subordinated Amount for such
day.
"Series 1999-A Termination Date" shall mean the Distribution
Date that occurs in January 2005.
"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.
14
"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).
"Unallocated Balance" shall mean, as of any Business Day, the
Series 1999-A Invested Amount allocated to any Eurodollar Tranche the Eurodollar
Period in respect of which expires on such Business Day.
"VFC Certificate" shall mean a VFC Certificate, Series 1999-A,
which may be uncertificated or may be represented by an Investor Certificate
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, and for
purposes of the Agreement, shall constitute Investor Certificateholders.
"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 1999-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
15
is intended to encompass only representations, warranties or covenants that are
expressly stated to be 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 1999-A." The VFC Certificates shall be
designated FASIT Regular Interests for United States federal income tax
purposes. The VFC Certificates Series 1999-A shall be uncertificated, except
upon the written request of a VFC Certificate holder, the Trustee shall issue an
Investor Certificate in accordance with the terms of the Agreement and this
Supplement to such holder. The Purchasers shall be entitled to all rights of a
VFC Certificate holder whether or not such Purchaser holds a certificate
representing such VFC Certificate.
SECTION 2.02 The VFC Certificates and Series 1999-A
Subordinated Interest. (a) The VFC Certificates shall represent fractional
undivided interests in the Trust Assets, including the right of the VFC
Certificate holders to receive the distributions specified herein out of (i) the
Series 1999-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 1999-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, including the right of the holder of the Subordinated
Company Interest to receive the distributions specified herein out of (i) the
Series 1999-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 1999-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 1999-A
Subordinated Interest"). The Exchangeable Company Interest and any other Series
of Investor Certificates or Subordinated Company Interests
16
outstanding shall represent the ownership interests in the remainder of the
Trust Assets not allocated pursuant hereto to the VFC Certificate holders'
Interest or the Series 1999-A Subordinated Interest.
(c) The VFC Certificates, if certificated, shall be
substantially in the form of Exhibit A, and shall, upon issue, be executed and
delivered by the Company to the Trustee for authentication 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, if certificated, 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 1999-A
Subordinated Interest shall be uncertificated.
Section 2.03 Purchases of Interests in the VFC Certificates
and the Series 1999-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
1999-A Invested Amount and (B) to maintain its VFC Certificate, subject to
increase or decrease during the Series 1999-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 1999-A Subordinated Interest in an amount equal to the Initial Series
1999-A Subordinated Interest Amount and (B) to maintain such interest in the
Series 1999-A Subordinated Interest, subject to increase or decrease during the
Series 1999-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 agrees to maintain its VFC
Certificate, subject to increase or decrease during the Series 1999-A Revolving
Period, in accordance with the provisions of this Supplement.
(c) Maximum Series 1999-A Purchaser Invested Amount.
Notwithstanding anything to the contrary contained in this Supplement, at no
time shall the Series 1999-A 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, if any Purchaser
has requested a VFC Certificate in accordance with Section 2.01, the Company
shall sign on behalf of the Trust and shall direct the Trustee in writing
pursuant to Section 5.02 of
17
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, if certificated,
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 xxxx on its books the actual Series 1999-A Purchaser Invested
Amount for each Purchaser and Series 1999-A Subordinated Interest Amount
outstanding on any date of determination which, absent manifest error, shall
constitute prima facie evidence of the outstanding Series 1999-A Purchaser
Invested Amount for each Purchaser and Series 1999-A Subordinated Interest
Amount from time to time.
SECTION 2.05 Procedure for Initial Issuance and for
Increasing the Series 1999-A Invested Amount. (a) Subject to subsection
2.05(b), on any Business Day during the Commitment Period, each Purchaser
agrees that the Series 1999-A Invested Amount may be increased by increasing
each Purchaser's Series 1999-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, which may include
the Issuance Date, on which an increase in the Series 1999-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 1:00 p.m., New York City time, three Business Days prior to 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 notice shall state (x) the Increase Date; (y) the Initial
Series 1999-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 each Eurodollar Tranche. No Purchaser shall be obligated to fund
any such Increase, unless concurrently with any such Increase in the Series
1999-A Invested Amount, the Series 1999-A Subordinated Interest Amount shall be
increased by an amount (the "Series 1999-A Subordinated Interest Increase
Amount") such that after giving effect to such increase, the Series 1999-A
Adjusted Invested Amount plus the Series 1999-A Subordinated Interest Amount
equals the Series 1999-A Target Receivables Amount.
18
(b) The Purchasers shall not be required to make the initial
purchase of VFC Certificates or to increase their respective Series 1999-A
Invested Amounts on any Increase Date hereunder unless:
(i) the related aggregate initial purchase amount or Increase
Amount is equal to $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 1999-A Invested Amount (calculated
without regard to clauses (d) and (e) of the definition of Series
1999-A Purchaser Invested Amount) would not exceed the Maximum
Commitment Amount on such Increase Date, as the case may be, and (B)
the Series 1999-A Allocated Receivables Amount would not be less than
the Series 1999-A Target Receivables Amount on 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 telecopy 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 Amount). The Servicer shall promptly notify the Company of the Increase
Date and the amount of the Series 1999-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 1999-A
Invested Amount; Optional Termination. (a) On any Business Day during the Series
1999-A Revolving Period or the Series 1999-A Amortization Period (except for
Distribution Dates during the Series 1999-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 Series 1999-A Invested Amount 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 1999-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, however, that no prepayment
of any Eurodollar Tranche prior to the termination of a
19
Eurodollar 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
1999-A Revolving Period, the Series 1999-A Subordinated Interest Amount shall be
reduced by an amount (the "Series 1999-A Subordinated Interest Reduction
Amount") such that the Series 1999-A Subordinated Interest Amount shall equal
the Series 1999-A Required Subordinated Amount after giving effect to such
Decrease. During the Series 1999-A Revolving Period, after the distribution
described in subsection (a) above has been made, and the Series 1999-A
Subordinated Interest Amount shall have been reduced by the Series 1999-A
Subordinated Interest Reduction Amount, a distribution shall be made to the
holder of the Series 1999-A Subordinated Interest out of remaining funds on
deposit in the Series 1999-A Principal Collection Sub-subaccount in an amount
equal to the lesser of (x) the Series 1999-A Subordinated Interest Reduction
Amount and (y) the amount of such remaining funds on deposit in the Series
1999-A Principal Collection Sub-subaccount.
(c) Any reduction in the Series 1999-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 1999-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
1999-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 1999-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 1999-A Invested Amount
(calculated without regard to clauses (d) and (e) of the definition of Series
1999-A Purchaser
20
Invested Amount) on such date, the Series 1999-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 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 1999-A Revolving Period at a rate equal to 0.25% per annum, in each case
of the average daily excess of the Aggregate Commitment Amount over the average
Series 1999-A Invested Amount (based on the Series 1999-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 1999-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 1999-A Accrued Interest
Sub-subaccount and the Series 1999-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
21
One-Month LIBOR by 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
that the Company shall not indemnify any Company Indemnified person for any
liability, cost or expense of such Company Indemnified Person arising solely
from a default by an Obligor with respect to any Receivable provided, further
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, 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
22
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 the Servicing 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
1999-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 1999-A
Subordinated Interest, (A) a subaccount of the Collection Account (the "Series
1999-A Collection Subaccount"), which subaccount is the Series Collection
Subaccount with respect to Series 1999-A; (B) two subaccounts of the Series
1999-A Collection Subaccount: (1) the Series 1999-A Principal Collection
Sub-subaccount and (2) the Series 1999-A Non-Principal Collection Sub-subaccount
(respectively, the "Series 1999-A Principal Collection Sub-subaccount" and the
"Series 1999-A Non-Principal Collection Sub-subaccount"), and (C) a subaccount
of the Series 1999-A Non-Principal Collection Sub-subaccount (the "Series 1999-A
Accrued Interest Sub-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
23
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 1999-A Subordinated Interest; provided, however, that funds on deposit in
a Trust Account that is a Sub-subaccount of the Series 1999-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 1999-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 1999-A Revolving Period, on or prior to
the next Business Day and (ii) in the case of any such investment made during
the Series 1999-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 1999-A Non-Principal Collection
Sub-subaccount and the Series 1999-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 expenses) on funds deposited in the Series 1999-A Accrued
Interest Sub-subaccount shall be deposited in the Series 1999-A Non-Principal
Collection Sub-subaccount. All interest and investment earnings (net of losses
and investment expenses) on funds deposited in the Series 1999-A Principal
Collection Sub-subaccount shall be deposited in the Series 1999-A Non-Principal
Collection Sub-subaccount.
SECTION 3A.03. Daily Allocations. (a) The portion of the
Aggregate Daily Collections allocated to Series 1999-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 1999-A Revolving
Period, such greater amount as the Company may request in writing)
shall be transferred from the Series
24
1999-A Collection Subaccount to the Series 1999-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 1999-A Collection
Subaccount to the Series 1999-A Non-Principal Collection Sub-subaccount
or, if such adjustment is a negative amount, be transferred from the
Series 1999-A Non-Principal Collection Sub-subaccount to the Series
1999-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 1999-A Collection Subaccount shall be
transferred by the Trustee to the Series 1999-A Principal Collection
Sub-subaccount.
(b) (i) On each Business Day during the Series 1999-A
Revolving Period (including Distribution Dates), after giving effect to (x) all
allocations of Aggregate Daily Collections referred to in subparagraphs (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 1999-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
25
continuing and only to the extent that if, after giving effect to such
distribution, the Series 1999-A Target Receivables Amount would not exceed the
Series 1999-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, 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 1999-A Principal Collection
Sub-subaccount and apply such withdrawn amounts toward the reduction of the
Series 1999-A Invested Amount and the Series 1999-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.
(ii) During the Series 1999-A Amortization Period, amounts on
deposit in the Series 1999-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 1999-A Principal
Collection Sub-subaccount shall be distributed by the Trustee to the Company or
the holder of the Series 1999-A Subordinated Interest during the Series 1999-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 1999-A
Non-Principal Collection Sub-subaccount to the Series 1999-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 1999-A Non-Principal Collection Sub-subaccount to
the Series 1999-A Accrued Interest Sub-subaccount or, if such adjustment is a
negative amount, be transferred from the Series 1999-A Accrued Interest
Sub-subaccount to the Series 1999-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. Deterimation 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 1999-A Monthly Interest
Distribution") on each Distribution Date shall be the aggregate amount of Daily
26
Interest Expense accrued during the immediately preceding Accrual Period.
(ii) Following any change in the amount of any Eurodollar
Tranche during an Accrual Period, the Series 1999-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.
(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 1999-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
1999-A Monthly Interest Distribution 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 Certificate Rate plus 1.0% per annum 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) One Business Day each week, 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
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 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.
27
(d) Any reduction in the Series 1999-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 1999-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 1999-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 four 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
subsection 6.01(e) of the Servicing Agreement), (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 1999-A Revolving Period, the Company may not select any Eurodollar Period
that does not end on or prior to the next succeeding Distribution Date.
SECTION 3A.05. Determination of Series 1999-A Monthly
Principal. (a) Payments of Series 1999-A Principal. The amount (the "Series
1999-A Monthly Principal Payment") distributable from the Series 1999-A
Principal Collection Sub-subaccount on each Distribution Date during the Series
1999-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 1999-A Monthly Principal Payment on any Distribution Date shall
not exceed the Series 1999-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 1999-A
Amortization Period, funds may be distributed from the Series 1999-A Principal
Collection Sub-subaccount to the Purchasers in accordance with Section 2.06 of
this Supplement.
(b) Reductions to Series 1999-A Principal. If, on any Special
Allocation Settlement Report Date, the Series 1999-A Allocable Charged-Off
Amount is greater than zero for the related Settlement Period, the Trustee shall
(in accordance with the
28
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 1999-A Required Subordinated Amount shall be
reduced (but not below zero) by an amount equal to the Series 1999-A
Allocable Charged-Off Amount (which shall also be reduced by the amount
so applied);
(ii) then, to the extent that the Series 1999-A Allocable
Charged-Off Amount is greater than zero following the application in
clause (i) above, the Series 1999-A Invested Amount shall be reduced
(but not below zero) by such remaining Series 1999-A Allocable
Charged-Off Amount (which shall also be reduced by the amount so
applied).
(c) Increases to Series 1999-A Principal. If, on any Special
Allocation Settlement Report Date, the Series 1999-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 1999-A Invested Amount shall be increased (but
only to the extent of any previous reductions of the Series 1999-A
Invested Amount pursuant to subsection 3A.05(b)(ii)) by the amount of
the Series 1999-A Allocable Recoveries Amount (which shall also be
reduced by the amount so applied);
(ii) then, to the extent that the Series 1999-A Allocable
Recoveries Amount is greater than zero following the applications in
clause (i) above, the Series 1999-A Required Subordinated Amount shall
be increased (but only to the extent of any previous reductions of the
Series 1999-A Required Subordinated Amount pursuant to subsection
3A.05(b)(i)) by such remaining Series 1999-A Allocable Recoveries
Amount (which shall also be reduced by the amount so applied).
(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, based solely on the information provided to the Trustee by the
Servicer in the Monthly Settlement Statement (upon which the Trustee may
conclusively rely) on each Distribution Date, from amounts on deposit in the
Series 1999-A Accrued Interest Sub-subaccount, an amount equal to the Series
1999-A Monthly Interest Distribution payable on such Distribution Date
29
(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 1999-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 1999-A Monthly Servicing Fee
for the Accrual Period ending on such Distribution Date shall be
withdrawn from the Series 1999-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 Commitment Fees, first, and any
Program Costs, second, due and payable shall be withdrawn from the
Series 1999-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 1999-A 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 1999-A Subordinated Interest; provided, however, that during the
Series 1999-A Amortization Period, such remaining amounts shall be deposited in
the Series 1999-A Principal Collection Sub-subaccount for distribution in
accordance with subsection 3A.06(c).
(c) During the Series 1999-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 1999-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 1999-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
30
immediately preceding Settlement Period shall be transferred from the
Series 1999-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 1999-A Monthly
Principal Payment for such Distribution Date shall be distributed from
the Series 1999-A Principal Collection Sub-subaccount to the Purchasers
in reduction of the Series 1999-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 1999-A Principal Collection Sub-subaccount and paid to
the Trustee or such other Person; and
(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 1999-A Principal Collection Sub-subaccount on such
Distribution Date, if any, shall be distributed to the holder of the
Series 1999-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.
31
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 April 1999), 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
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 1999, 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
information 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 1999-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 1999-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 within one
Business Day after the Agent receives such notice. In addition, on the Business
Day preceding each day on which a distribution of principal is to be made during
the Series 1999-A Amortization
32
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.
ARTICLE V
Additional Early Amortization Events
SECTION 5.01 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 1999-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 1999-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 such
failure and (ii) the date on which notice of such failure, requiring
the same to be remedied, shall
33
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 1999-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 1999-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 1999-A Allocated Receivables Amount shall be
less than the Series 1999-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 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)
34
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; or
(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) GM delivers a notice of termination to AAM that it has
terminated a Lifetime Program Contract (an "LPC") with GM which
accounted for at least 10% of the dollar amount of all sales by AAM to
GM and its affiliates for the most recently ended 12 month period
ending prior to the date of such notice, and such termination was
caused by GM's determination that the products produced under such LPC
are no longer competitive in terms of technology, design or quality and
such termination has a Material Adverse Effect.
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), 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 1999-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 such event, then an
Early Amortization Period shall occur automatically unless, (i) prior to the end
of such 10 Business Day period, the Series 1999-A Allocated Receivables Amount
shall no longer be less than the Series 1999-A Target Receivables Amount and
(ii) so long as the Series 1999-A Allocated Receivables Amount continues to be
equal to or greater than the Series 1999-A Target Receivables Amount, VFC
Certificate holders evidencing 66-2/3% or more of the Series 1999-A Invested
Amount shall have waived the occurrence of such event.
35
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 1999-A (the "Series 1999-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 1999-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 1999-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 1999-A Non-Principal Collection Sub-subaccount
on any such Distribution Date are insufficient to pay the Series 1999-A Monthly
Servicing Fee 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
36
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 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) Notwithstanding 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 its VFC Certificate (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 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 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
37
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.
(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
38
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 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; and (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; (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
39
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Transaction Document (hereinafter referred to as "Other
Taxes").
(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 payment in full of principal and interest hereunder and the
termination of the Trust.
40
(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 1001 or Form 4224 or
successor applicable or required form, in each case, establishing a complete
exemption from United States federal income withholding taxes, 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 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms or other manner of certification, as the case may be,
on or before the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the 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 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) 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 an increase 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
41
Tranche prior to the termination of the Eurodollar 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 increased, converted or continued, for the period from the
date of such prepayment or of such failure to increase, convert or continue to
the last day of the Eurodollar Period (or in the case of a failure to increase,
convert or continue, the Eurodollar 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 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
42
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.
(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 in all material respects 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:
43
(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 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;
44
(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; and the
Agent shall provide copies of each such notification to each Purchaser
within one Business Day after receipt of such notification.
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 a material 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, as directed by the Majority
Purchasers, 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.
45
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, less than 50% of the value of
the relevant Initial Purchaser's or Acquiring Purchaser's equity interest in
such entity is attributable to such entity's interest in the VFC Certificates;
(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;
(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; and
(e) the representations and warranties set forth on Schedule 3
to this Supplement are true and correct with respect to such Purchaser.
ARTICLE IX
Conditions Precedent
SECTION 9.01 Conitions 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 Company, the Servicer and
46
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 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
47
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 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.
48
(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 reasonably
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 reasonably acceptable to the Agent and its counsel.
(h) Fees. The Agent 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) 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.
(j) Copies of Written Policies. The Agent and the Trustee
shall have received copies of the written Policies of the Seller in form and
substance reasonably acceptable to the Agent.
(k) 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.
(l) Financial Statements. The Agent and the Trustee shall have
received a balance sheet for the Company for the fiscal year ended December 31,
1998. The Agent shall have received the consolidated balance sheets and
statements of income, stockholders' equity and cash flows of the Relevant Entity
and its respective subsidiaries on a consolidated basis as of and for the fiscal
year ended December 31, 1998, audited by and accompanied by the opinion of
Deloitte & Touche LLP, independent public accountants. For purposes of this
Section 9.01(l), the "Relevant Entity" shall be American Axle & Manufacturing
Holdings, Inc. ("Holdings") so long as Holdings has no significant assets other
than its investment in American Axle & Manufacturing, Inc. However, if Holdings
has significant assets other than its investment in American Axle &
Manufacturing, Inc., such "Relevant Entity" shall be American Axle &
Manufacturing, Inc.
(m) 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.
49
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 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.
50
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 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. Notice of Servicer
Default or Early Amortization Event or Potential Early Amortization. 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 indemnification
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, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of, the Commitments,
this Supplement any of the 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 from the Agent's gross negligence or wilful
misconduct. The agreements in
52
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, so
long as no Early Amortization Event set forth in clauses (a), (b), (c) or (d)
of Section 5.01 shall have occurred and be continuing, 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.
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,
53
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 1999-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 Transaction Documents and amendments or
waivers of any such documents and (ii) the enforcement by the Agent (on behalf
of the Purchasers) 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 subsection (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
54
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 Certificateholders (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.
(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 of 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) (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 or (iv) release the security interest (as defined in the UCC) in any
Eligible Receivables if after giving effect thereto the Series 199A-A Allocated
Receivables Amount would be less than the Series 1999-A Target Receivables
Amount.
(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 1999-A
is not then rated, in which case this Subsection 11.07(d) shall not apply).
55
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 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
56
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, 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 Supplement, 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
57
terms of this Supplement are required to be performed by it as a Purchaser.
(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"). Such Register need not be a separate register from the
Certificate Register set forth in Section 5.03(a) of the Pooling Agreement.
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, notwithstanding 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 (iii) give prompt written notice thereof to the Purchasers, the
Company, the Servicer and the Trustee. No assignment shall be effective
58
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 1999-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 an Internal
Revenue Service Form 1001 or Form 4224, in each case, establishing a complete
exemption from United States federal income withholding taxes, with respect to
each Participant (i) prior to or promptly after any such disposition and (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
59
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,
concurrently 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 1001 or 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 1001 or Form 4224,
as the case may be (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 regulations 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.
(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. Section 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
60
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
1999-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 1999-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 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.
61
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 1999-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 Distribution Date following the date on which
the proceeds from the disposition of the Receivables pursuant to subsection
7.02(b) of the Agreement are deposited into the Series 1999-A Non-Principal
Collection Sub-subaccount and the Series 1999-A Principal Collection
Sub-subaccount, the Trustee shall distribute such amounts pursuant to Article
III of this 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.
62
IN WITNESS WHEREOF, the Company, the Servicer, the Trustee,
the Agent and the Initial Purchasers have caused this Series 1999-A Supplement
to be duly executed by their respective officers as of the day and year first
above written.
AAM RECEIVABLES CORP.,
by
--------------------------------------------
Name:
Title:
AMERICAN AXLE & MANUFACTURING INC., as Servicer,
by
--------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Trustee,
by
--------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Agent,
by
--------------------------------------------
Name:
Title:
CREDIT COMMUNAL DE BELGIQUE,
as Initial Purchaser,
by
--------------------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as Initial Purchaser,
by
--------------------------------------------
Name:
Title:
RZB FINANCE LLC, as Initial
Purchaser,
by
--------------------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS, as
Initial Purchaser,
by
--------------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ, as
Initial Purchaser,
by
--------------------------------------------
Name:
Title:
BANQUE ET CAISSE D'EPARGNE DE
L'ETAT, LUXEMBOURG, as Initial
Purchaser,
by
--------------------------------------------
Name:
Title:
BANK INTERNATIONALE
LUXEMBOURG, as Initial
Purchaser,
by
--------------------------------------------
Name:
Title:
CAISSE DES DEPOTS ET
CONSIGNATIONS, as Initial
Purchaser,
by
--------------------------------------------
Name:
Title:
VIA BANQUE, as Initial
Purchaser,
by
--------------------------------------------
Name:
Title:
THE TRAVELERS INSURANCE
COMPANY, as Initial Purchaser,
account TLAC and its separate
account SMGA
by
--------------------------------------------
Name:
Title:
EXHIBIT A TO SERIES
1999-A SUPPLEMENT
AAM MASTER TRUST
FORM OF VFC CERTIFICATE, Series 1999-A
REGISTERED UP TO $_____________.00 SERIES
NO. VFC-[ ] 1999-A PURCHASER INVESTED AMOUNT*
(OF UP TO $_____________.00 SERIES
1999-A INVESTED AMOUNT ISSUED)
*THE Series 1999-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 (INCLUDING, WITHOUT LIMITATION, SECTION
11.10 OF THE SUPPLEMENT). THIS VFC CERTIFICATE MAY NOT BE TRANSFERRED
TO ANY PERSON UNLESS SUCH PERSON BECOMES A PURCHASER UNDER SUCH
SUPPLEMENT.
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 amended
1
and restated as of March 25, 1999 (as the same may 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 1999-A
Supplement, dated as of March 25, 1999 (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 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, AAM Master Trust. 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 Certificates shall be designated FASIT Regular Interests for U.S.
federal income tax purposes. The VFC Certificateholder, by the
acceptance hereof, and the beneficial owner of the VFC Certificate (or
any interest therein), by acquiring a beneficial ownership interest in
such VFC Certificate (or interest), agree to treat the VFC Certificates
in such manner for such purposes.
2
This VFC Certificate is one in a Series of Investor
Certificates entitled "AAM Master Trust, VFC Certificates, Series
1999-A" (the "VFC Certificates") representing a fractional undivided
interest in the Trust Assets, including the right to receive the
distributions specified in the Supplement out of (i) the Series 1999-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 1999-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 1999-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 1999-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 1999-A Subordinated Interest"). The Trust Assets
are allocated in part to the VFC Certificate holders and the holders of
the Series 1999-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.
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.
Distributions with respect to this VFC Certificate
shall be paid 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.
3
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 1001 or 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 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
4
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
1999-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
1999-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 proceedings under any
federal or state bankruptcy or similar law.
5
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:___________________ , ____
AAM RECEIVABLES CORP.,
as authorized pursuant to
Section 5.01 of the Pooling
Agreement,
by
-------------------------
Title
6
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
-----------------------------
Authorized Signatory
OR
By
-----------------------------
Authorized Signatory
7
Schedule 1
to VFC Certificate
===============================================================================
Increase Decrease
in Series in Series
1999-A 1999-A Series 1999-A
Purchaser Purchaser Purchaser
Invested Invested Invested Notation
Date Amount Amount Amount Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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===============================================================================
1
EXHIBIT B TO SERIES
1999-A SUPPLEMENT
[FORM OF COMMITMENT TRANSFER SUPPLEMENT]
COMMITMENT TRANSFER SUPPLEMENT, dated as of [ , ]
among [ ] (the "Transferor"), each purchaser listed as an
Acquiring Pur chaser 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 1999-A
Supplement, dated as of March 25, 1999 (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
AAM Receivables Corp. (the "Company"), American Axle and Manufacturing Inc. (the
"Servicer"), the other Purchasers from time to time parties thereto, the Trustee
and the Agent, to the Pooling Agreement, dated as of October 29, 1997, as
amended and restated as of March 25, 1999, 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.
1
2. This Commitment Transfer Supplement is being delivered to
the Agent together with (i) if the 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 1999-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
1999-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 may
be, in accordance with their respective interests as reflected in this
Commitment Transfer Supplement,
2
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 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
3
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 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],
as Transferor,
by
------------------------------------
Title
4
[NAME OF PURCHASING
PURCHASER], as Acquiring
Purchaser,
by
------------------------------------
Title
[ ],
as Agent,
by
------------------------------------
Title
5
SCHEDULE I
TO EXHIBIT B
TO Series 1999-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
1999-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:
---------------------------------------------------------------
1
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 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 ( ) [ ].
2
EXHIBIT F TO SERIES
1999-A SUPPLEMENT
FORM OF ISSUANCE/INCREASE NOTICE
________, 199__
[Agent/Address of Agent]
Telecopier:
Attention:
Ladies and Gentlemen:
Reference is hereby made to the Series 1999-A Supplement,
dated as of March 25, 1999 (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 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 Eurodollar Tranche with a Eurodollar
Period of one month.
The [Servicer] [Company] hereby represents and warrants, as of
the date of such [purchase] [Increase] after 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
1999-A SUPPLEMENT
PARTICIPATION CERTIFICATION
AAM Receivables Corp.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0X
Xxxxxxx, XX 00000
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our 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
1999-A Supplement (the "Supplement") to the Pooling Agreement, dated as of March
25, 1999 (the "Agreement"), 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, less than 50% of the value of
our equity interest in such entity is attributable to such entity's interest in
the VFC Certificates.
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.
4. We understand that we may not at any time grant any
participation or other interest in the Participation or
1
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:
2
EXHIBIT H TO SERIES
1999-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,
as amended and restated as of March 25, 1999, 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 breach of this
agreement, (B) becomes available to us on a
1
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]
2
Schedule 1 to the
Series 1999-A Supplement
COMMITMENTS
Purchasers Commitment
---------- ----------
The Travelers Insurance Company, for itself and two of its $ 35,000,000
separate accounts
Credit Agricole Indosuez 25,000,000
Dresdner Bank New York 25,000,000
Caisse des Depots et Consignations 20,000,000
Banque Nationale de Paris 10,000,000
Credit Comunal de Beigique 10,000,000
RZB Finance LLC, New York 10,000,000
Via Banque 10,000,000
Banque Internationale Luxembourg 5,000,000
Banque et Caisse D'Epargne de L'Etat, Luxembourg 3,000,000
------------
$153,000,000
Schedule 2 to the
Series 1999-A Supplement
Trust Accounts
Account Account Number
------- --------------
AAM Collection Account 507-831454
AAM Company Collection Sub-Account 507-830555
AAM 99-A Collection Subaccount 507-885147
AAM 99-A Principal Collection Sub- 507-885163
subaccount
AAM 99-A Non-Principal Collection Sub- 507-885171
subaccount
AAM 99-A Accrued Interest Sub- 507-885198
subaccount
1
Schedule 3 to the
Series 1999-A Supplement
Representations and Warranties of Each Initial Purchaser and Acquiring
Purchaser
(1) except as otherwise agreed by the Company, it is not (a) an "employee
benefit plan" within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended, or other retirement arrangement,
individual retirement account or Xxxxx plan, whether or not it is subject to
the provisions of Title I thereof, (b) any plan described in Section 4975(e)(1)
of the Code or (c) any other entity that would be deemed to be a "benefit plan
investor" within the meaning of Department of Labor Regulation Section
2510.3-101(f)(2);
(2) if the VFC Certificates constitute a security, as defined in the Securities
Act of 1933, as amended (the "Securities Act"),
(a) it is an "institutional accredited investor" within the
meaning of Rule 501(a)(1),(2),(3) or (7) of Regulation D under the Securities
Act of 1933, as amended;
(b) it is purchasing the VFC Certificates for its own account
or for the account of one or more other institutional accredited investors;
(c) it has such knowledge and experience in financial and
business matters, it is capable of evaluating the merits and risks of purchasing
the VFC Certificates and it, or the account for which it is purchasing the VFC
Certificates, can bear the economic risks in the VFC Certificates for an
indefinite period of time;
(d) it is acquiring the VFC Certificates for investment and
not with a view to any distribution thereof in a transaction that would violate
the Securities Act or the securities laws of any state of the United States or
any other applicable jurisdiction, provided that the disposition of its property
and the property of any accounts for which it is acting as fiduciary shall
remain at all times within its control;
(e) it understands that the VFC Certificates are being offered
in a transaction not involving any public offering within the meaning of the
Securities Act and that the VFC Certificates have not been registered under the
Securities Act or any state securities law and will contain, or be deemed to
contain, the legends set forth in Exhibit A to the Series 1999-A Supplement-The
AAM Master Trust, Form of VFC Certificate, Series 1999-A, and it agrees, on its
own behalf and on behalf of each account for which it acquires
2
any VFC Certificates, that such VFC Certificates may not be resold, pledged or
transferred except to a person who is an institutional accredited investor
pursuant to a transaction that is exempt from the registration requirements of
the Securities Act and in compliance with any applicable state securities law.
3
