Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment No. 1 to Registration Statement 6 50K
2: EX-10.02 Component Supply Agreement 209 615K
3: EX-10.02(A) Amend. No. 1 to Component Supply Agreement 2 11K
4: EX-10.02(B) Amend. No. 2 to Component Supply Agreement 2 11K
5: EX-10.02(C) Letter of Intent Dated Feb. 21, 1996 by G.M.T.G. 5 19K
6: EX-10.02(D) Letter of Intent Dated Feb. 21, 1996 by G.M.T.G. 3 18K
7: EX-10.02(E) Letter Agreement 13 71K
8: EX-10.02(F) Amended and Restated Memorandum of Understanding 39 261K
9: EX-10.02(G) Mou Extension Agreement 1 11K
10: EX-10.03 Gmcl Purchase Order Agreement 29 80K
11: EX-10.04 Am/Gmcl Supply Agreement 24 70K
12: EX-10.04(A) Amending Agreement Dated as of September 5, 1996, 1 10K
Between Aam, Inc. and Gmcl
13: EX-10.04(B) Amending Agreement Dated as of October 7, 1996, 1 11K
Between Aam, Inc. and Gmcl
14: EX-10.04(C) Amendment No. 1 to Aam/Gmcl Supply Agreement 1 10K
Dated February 17, 1994, Between Aam,
Inc. and Gmcl
15: EX-10.05 Agreement 1 10K
16: EX-10.05(A) Letter Dated December 13, 1996, by Aam, Inc. 4 24K
17: EX-10.08 Management Stock Option Plan 14 56K
18: EX-10.10 Indemnification Agreement 11 29K
19: EX-10.16 Aam Master Trust Pooling Agreement 130 425K
20: EX-10.16(A) Aam Master Trust Series 1997-A Supplement to 108 326K
Pooling Agreement
21: EX-10.17 Receivables Sale Agreement 72 317K
22: EX-10.18 Servicing Agreement 40 131K
23: EX-10.19 Agreement for Information Technology Services 106 330K
EXECUTION COPY
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AAM MASTER TRUST
POOLING AGREEMENT
Among
AAM RECEIVABLES CORP.
AMERICAN AXLE & MANUFACTURING, INC.
as Servicer
and
THE CHASE MANHATTAN BANK
as Trustee
Dated as of October 29, 1997
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TABLE OF CONTENTS
ARTICLE I
Page
Definitions..............................................1
SECTION 1.01. Definitions...............................................................................1
SECTION 1.02. Other Definitional Provisions............................................................30
ARTICLE II
Conveyance of Receivables;
Representations, Warranties and Covenants..............................31
SECTION 2.01. Conveyance of Receivables.............................................................31
SECTION 2.02. Acceptance by Trustee....................................................................34
SECTION 2.03. Representations and Warranties
of the Company Relating to
the Company................................................................35
SECTION 2.04. Representations and Warranties
of the Company Relating to the
Receivables................................................................39
SECTION 2.05. Adjustment Payment for Ineligible
Receivables................................................................40
SECTION 2.06. Purchase of Investor
Certificateholders' Interest in Trust
Portfolio..................................................................42
SECTION 2.07. Affirmative Covenants of the Company.....................................................43
SECTION 2.08. Negative Covenants of the Company........................................................48
ARTICLE III
Rights of Holders and
Allocation and Application of Collections..............................52
SECTION 3.01. Establishment of Collection
Account; Certain Allocations...............................................52
ARTICLE IV
ARTICLE IV IS RESERVED
AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO THE SERIES RELATING THERETO..............................58
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TOC Pooling Agreement Contents, p. ii
Page
ARTICLE V
The Investor Certificates and
Exchangeable Company Interest..................................................58
SECTION 5.01. The Investor Certificates................................................................58
SECTION 5.02. Authentication of Investor Certificates..................................................59
SECTION 5.03. Registration of Transfer and Exchange of
Investor Certificates......................................................60
SECTION 5.04. Mutilated, Destroyed, Lost or
Stolen Investor Certificates...............................................62
SECTION 5.05. Persons Deemed Owners....................................................................63
SECTION 5.06. Appointment of Paying Agent..............................................................63
SECTION 5.07. Access to List of Investor
Certificateholders' Names
and Addresses..............................................................65
SECTION 5.08. Authenticating Agent.....................................................................65
SECTION 5.09. Tax Treatment............................................................................68
SECTION 5.10. Exchangeable Company Interest............................................................68
SECTION 5.11. Book-Entry Certificates..................................................................73
SECTION 5.12. Notices to Clearing Agency...............................................................74
SECTION 5.13. Definitive Certificates..................................................................74
ARTICLE VI
Other Matters Relating to the Company................................75
SECTION 6.01. Liability of the Company.................................................................75
SECTION 6.02. Limitation on Liability of the Company...................................................75
ARTICLE VII
Early Amortization Events......................................76
SECTION 7.01. Early Amortization Events................................................................76
SECTION 7.02. Additional Rights upon the
Occurrence of Certain Events...............................................78
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Page
ARTICLE VIII
The Trustee.............................................79
SECTION 8.01. Duties of Trustee........................................................................79
SECTION 8.02. Rights of the Trustee....................................................................82
SECTION 8.03. Trustee Not Liable for Recitals..........................................................84
SECTION 8.04. Trustee May Own Investor Certificates....................................................85
SECTION 8.05. Trustee's Fees and Expenses..............................................................85
SECTION 8.06. Eligibility Requirements for Trustee.....................................................86
SECTION 8.07. Resignation or Removal of Trustee........................................................86
SECTION 8.08. Successor Trustee........................................................................87
SECTION 8.09. Merger or Consolidation of Trustee.......................................................88
SECTION 8.10. Appointment of Co-Trustee or Separate
Trustee....................................................................88
SECTION 8.11. Tax Returns..............................................................................90
SECTION 8.12. Trustee May Enforce Claims Without
Possession of Investor Certificates........................................91
SECTION 8.13. Suits for Enforcement....................................................................91
SECTION 8.14. Rights of Investor Certificateholders
To Direct Trustee..........................................................91
SECTION 8.15. Representations and Warranties
of Trustee.................................................................91
SECTION 8.16. Maintenance of Office or Agency..........................................................92
SECTION 8.17. Limitation of Liability..................................................................93
ARTICLE IX
Termination.............................................93
SECTION 9.01. Termination of Trust.....................................................................93
SECTION 9.02. Optional Purchase and Final Termination
Date of Investor Certificates of Any
Series.....................................................................94
SECTION 9.03. Final Payment with Respect to Any Series..............................................96
SECTION 9.04. Company's Termination Rights.............................................................97
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ARTICLE X
Miscellaneous Provisions.......................................98
SECTION 10.01. Amendment...............................................................................98
SECTION 10.02. Protection of Right, Title and
Interest to Trust........................................................100
SECTION 10.03. Limitation on Rights of Holders........................................................100
SECTION 10.04. Governing Law..........................................................................101
SECTION 10.05. Notices................................................................................101
SECTION 10.06. Severability of Provisions.............................................................102
SECTION 10.07. Assignment.............................................................................102
SECTION 10.08. Investor Certificates Nonassessable
and Fully Paid...........................................................102
SECTION 10.09. Further Assurances.....................................................................103
SECTION 10.10. No Waiver; Cumulative Remedies.........................................................103
SECTION 10.11. Counterparts...........................................................................103
SECTION 10.12. Third-Party Beneficiaries..............................................................103
SECTION 10.13. Actions by Investor Certificateholders.................................................103
SECTION 10.14. Merger and Integration.................................................................104
SECTION 10.15. Headings. .............................................................................104
SECTION 10.16. Construction of Agreement..............................................................104
SECTION 10.17. No Setoff..............................................................................104
SECTION 10.18. No Bankruptcy Petition.................................................................105
SECTION 10.19. Limitation of Liability................................................................105
SECTION 10.20. Certain Information....................................................................106
EXHIBITS
Exhibit A Form of Lockbox Agreement
Exhibit B Form of Annual Opinion of Counsel
Exhibit C Internal Operating Procedures
Memorandum
SCHEDULES
Schedule 1 Receivables
Schedule 2 Identification of Trust Accounts
Schedule 3 Location of Chief Executive Office of
the Company
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TOC Pooling Agreement Contents, p. v
Page
APPENDICES
Appendix A Description of Servicer Site Review
Procedures
Description of Standby Liquidation
Appendix B System
POOLING AGREEMENT dated as of October 29,
1997, among AAM RECEIVABLES CORP., a Delaware
corporation (the "Company"); AMERICAN AXLE &
MANUFACTURING, INC., a Delaware corporation ("AAM",
in its capacity 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").
W I T N E S S E T H :
WHEREAS as of the date hereof, (i) the Company, the Seller
and the Servicer are entering into a Receivables Sale Agreement (as amended,
supplemented or otherwise modified from time to time thereafter, the
"Receivables Sale Agreement") and (ii) the Company, the Servicer and the
Trustee are entering into a Servicing Agreement (as amended, supplemented or
otherwise modified from time to time thereafter, the "Servicing Agreement");
WHEREAS, the parties hereto wish to enter into this
Agreement in order to create a master trust to which the Company would
transfer all its right, title and interest in, to and under the Receivables
and other Trust Assets then or thereafter owned by the Company, or in which
the Company has an interest, and such master trust shall, from time to time at
the direction of the Company, issue one or more Series of Investor
Certificates, representing interests in the Receivables and such other Trust
Assets as specified herein and in the Supplement related to such Series;
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Pooling Agreement
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Whenever used in
this Agreement, the following words and phrases shall
have the following meanings:
"Accounts" shall have the meaning specified in
subsection 2.01(a)(vi) of this Agreement.
"Adjusted Invested Amount" shall mean, with respect to any
Outstanding Series, the definition assigned to such term in the related
Supplement.
"Adjustment Payments" shall mean the collective reference to
payments of Transfer Deposit Amounts and Cash Dilution Payments.
"Affiliate" shall mean, with respect to any specified
Person, any other Person which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such specified Person. For
purposes of this definition, "control" of a Person means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities or otherwise, and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person,
if any, so designated in the related Supplement.
"Aggregate Adjusted Invested Amount" shall mean, with
respect to any date of determination, the sum of the Adjusted Invested Amounts
with respect to all Outstanding Series on such date of determination.
"Aggregate Allocated Receivables Amount" shall mean, with
respect to any date of determination, the sum of the Allocated Receivables
Amounts with respect to all Outstanding Series on such date of determination.
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Pooling Agreement
"Aggregate Daily Collections" shall mean, with respect to
any Business Day, the aggregate amount of all Collections deposited into the
Collection Account on such day.
"Aggregate Invested Amount" shall mean, at any date of
determination, the sum of the Invested Amounts with respect to all Outstanding
Series on such date of determination.
"Aggregate Overconcentration Amount" shall mean, with
respect to any date of determination, the sum of the Overconcentration Amounts
of all Eligible Obligors at the end of the preceding Business Day.
"Aggregate Receivables Amount" shall mean, with respect to
any date of determination, (i) the aggregate Principal Amount of all Eligible
Receivables in the Trust at the end of the Business Day immediately preceding
such date minus (ii) the Aggregate Overconcentration Amount
for such date.
"Aggregate Target Receivables Amount" shall mean, with
respect to any date of determination, the sum of the Target Receivables
Amounts with respect to all Outstanding Series on such date of determination.
"Agreement" shall mean this Pooling Agreement and all
amendments hereof and supplements hereto, and including, unless expressly
stated otherwise, each Supplement.
"Allocable Charged-Off Amount" shall have, with respect to
any Series, the meaning specified in subsection 3.01(e) and in any Supplement
for such Series.
"Allocable Recoveries Amount" shall have, with respect to
any Series, the meaning specified in subsection 3.01(e) and in any Supplement
for such Series.
"Allocated Receivables Amount" shall have, with respect to
any Outstanding Series, the meaning specified in the related Supplement for
such Outstanding Series.
"Amortization Period" shall have, with respect to any
Outstanding Series, the definition assigned to such term in the related
Supplement.
"Applicable Insolvency Laws" shall have the
meaning specified in subsection 7.01(a).
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Pooling Agreement
"Authorized Newspaper" shall mean a newspaper
with a national circulation.
"Bankruptcy Code" shall mean the United States
Federal Bankruptcy Code, 11 U.S.C. ss.ss. 101-1330, as
amended.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States of America.
"Book-Entry Certificates" shall mean certificates evidencing
a beneficial interest in the Investor Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11; provided, however, that after the occurrence of a condition
whereupon book-entry registration and transfer are no longer permitted and
Definitive Certificates are issued to the Certificate Book-Entry Holders, such
Investor Certificates shall no longer be "Book-Entry Certificates".
"Business Day" shall mean any day other than (i) a Saturday
or a Sunday or (ii) another day on which commercial banking institutions or
trust companies in the State of New York or in the city where the Corporate
Trust Office is located, are authorized or obligated by law, executive order
or governmental decree to be closed; provided that, when used in connection
with the calculation of Certificate Rates which are determined by reference to
LIBOR, "Business Day" shall mean any Business Day banks are open for dealings
in dollar deposits in the London interbank market.
"Business Day Received" shall mean, except as otherwise set
forth in the applicable Supplement, (i) with respect to funds deposited in the
Collection Account (a) if funds are deposited in the Collection Account by
1:30 p.m., New York City time, such day of deposit and (b) if funds are
deposited in the Collection Account after 1:30 p.m., New York City time, the
Business Day immediately following such day of deposit and (ii) with respect
to funds deposited in any Lockbox Account (a) if funds are deposited in such
Lockbox Account by the cut-off time established by the related Lockbox
Processor for same-day processing of deposits, such day of deposit and (b) if
funds are deposited in such Lockbox Account after such cut-off time, the
Business Day immediately following such day of deposit.
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Pooling Agreement
"Cash Dilution Payment" shall have the meaning specified in
subsection 4.05(a) of the Servicing Agreement.
"Certificate Book-Entry Holder" shall mean, with respect to
a Book-Entry Certificate, the Person who is listed on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency, as the beneficial owner of such Book- Entry Certificate
(directly or as an indirect participant, in accordance with the rules of such
Clearing Agency).
"Certificate Rate" shall mean with respect to any Series and
Class of Investor Certificates, the percentage interest rate (or formula on
the basis of which such interest rate shall be determined) stated in the
applicable Supplement.
"Certificate Register" shall mean the register maintained
pursuant to subsection 5.03(a), providing for the registration of the Investor
Certificates and transfers and exchanges thereof.
"Charged-Off Receivables" shall mean, with respect to any
Settlement Period, all Receivables (or portions thereof) which, in accordance
with the Policies of the Seller, have or should have been written off during
such Settlement Period as uncollectible, including, without limitation, the
Receivables of any Obligor which becomes the subject of any voluntary or
involuntary bankruptcy proceeding.
"Class" shall mean, with respect to any Series, any one of
the classes of Investor Certificates of that Series as specified in the
related Supplement.
"Clean-Up Call Repurchase Price" shall have the
meaning set forth in subsection 9.02(a).
"Clearing Agency" shall mean each organization registered as
a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with such Clearing Agency.
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Pooling Agreement
"Collection Account" shall have the meaning
specified in subsection 3.01(a).
"Collections" shall mean all collections and all amounts
received in respect of the Receivables transferred to the Trust, including
Recoveries, Adjustment Payments, indemnification payments made by the Servicer
or the Company and payments received in respect of Dilution Adjustments,
together with all collections received in respect of the Related Property in
the form of cash, checks, wire transfers or any other form of cash payment,
and all proceeds of Receivables and collections thereof (including, without
limitation, collections constituting an account or general intangible or
evidenced by a note, instrument, letter of credit, security, contract,
security agreement, chattel paper or other evidence of indebtedness or
security, whatever is received upon the sale, exchange, collection or other
disposition of, or any indemnity, warranty or guaranty payable in respect of,
the foregoing and all "proceeds" as defined in Section 9-306 of the UCC as in
effect in the State of New York).
"Company" shall mean AAM Receivables Corp., a
Delaware corporation.
"Company Collection Subaccount" shall have the
meaning specified in subsection 3.01(a).
"Company Exchange" shall have the meaning
specified in subsection 5.10(a).
"Company Repurchase Payment" shall have the
meaning specified in subsection 2.05(b).
"Company Subordinated Obligation" shall mean any payment
obligation or other liability designated as such in any Pooling and Servicing
Agreement, each of which payment obligations and other liabilities shall (i)
be subordinated and subject to the prior payment in full of all Company
Unsubordinated Obligations then due, (ii) be made solely from funds available
to the Company that are not required to be applied to Company Unsubordinated
Obligations then due and (iii) not constitute a general recourse claim against
the Company, but only a claim against the Company to the extent of funds
available to the Company after satisfying all Company Unsubordinated
Obligations then due.
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Pooling Agreement
"Company Unsubordinated Obligations" shall mean all payment
obligations and other liabilities of the Company under any Pooling and
Servicing Agreement that are not designated as Company Subordinated
Obligations.
"Contractual Obligation" shall mean, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound.
"Corporate Trust Office" shall mean the principal office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this Agreement
is located at The Chase Manhattan Bank, 450 W. 33rd Street, 15th Floor, New
York, New York 10001 (Attention of: Structured Finance Services Group).
"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).
"Credit Enhancer" shall mean, with respect to any
Outstanding Series, that Person, if any, designated as such in the applicable
Supplement.
"Cut-Off Date" shall mean the close of business
on October 24, 1997.
"Daily Report" shall have the meaning specified
in subsection 4.01 of the Servicing Agreement.
"Defaulted Receivable" shall mean any Eligible Receivable
which is unpaid in whole or in part for more than 120 days after its original
due date.
"Definitive Certificates" shall have the
meaning specified in Section 5.11.
"Deposit Date" shall have the meaning specified
in Section 3.01(d).
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Pooling Agreement
"Depository" shall mean, with respect to any Series, the
Clearing Agency designated as the "Depository" in the related Supplement.
"Depository Agreement" shall mean, with respect to any
Series, an agreement among the Company, the Trustee and a Clearing Agency, or
a letter of undertaking to a Clearing Agency by the Company and the Trustee,
in each case in a form reasonably satisfactory to the Trustee and the Company.
"Dilution Adjustment" shall mean any payments, rebates,
discounts, refunds or adjustments (including without limitation, as a result
of the application of any special or other discounts or any reconciliations)
of any Receivable, the amount owing for any returns (including, without
limitation, as a result of the return of any defective goods) or cancelations
and the amount of any other reduction of any payment under any Receivable, in
each case granted or made by the Seller to the related Obligor; provided,
however, a "Dilution Adjustment" does not include any Charged-Off Receivable.
"Distribution Date" shall mean, except as otherwise set
forth in the applicable Supplement, the 15th day of the month, or if such 15th
day is not a Business Day, the next succeeding Business Day.
"Dollars", "U.S. Dollars" and "$" shall mean
dollars in lawful currency of the United States of
America.
"Early Amortization Event" shall have, with respect to any
Series, the meaning specified in Section 7.01 of this Agreement (without
taking into account any Supplements) and in any Supplement for such Series.
"Early Amortization Period" shall have, with respect to any
Series, the definition assigned to such term in Section 7.01 of this Agreement
and in any Supplement for such Series.
"Eligible Institution" shall mean a depositary institution
or trust company (which may include the Trustee and its Affiliates) organized
under the laws of the United States of America or any one of the states
thereof or the District of Columbia; provided, however, that at all times (i)
such depositary institution or trust company is a member of the Federal
Deposit
9
Pooling Agreement
Insurance Corporation, (ii) the certificates of deposit or the unsecured and
uncollateralized debt obligations of such depositary institution or trust
company are rated in one of the two highest long-term or short-term rating
categories by each Rating Agency and (iii) such depositary institution or
trust company has a combined capital and surplus of at least $100,000,000.
"Eligible Investments" shall mean any deposit accounts,
book-entry securities, negotiable instruments or securities represented by
instruments in bearer or registered form which evidence:
(a) direct obligations of, and obligations fully guaranteed
as to timely payment by, the United States of America;
(b) Federal funds, demand deposits, time deposits or
certificates of deposit of any depositary institution or trust company
incorporated under the laws of the United States of America or any state
thereof (or any domestic branch of a foreign bank) and subject to
supervision and examination by federal or state banking or depositary
institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein the commercial
paper, certificates of deposit or other short-term unsecured and
uncollateralized debt obligations (other than such obligations the rating
of which is based on the credit of a Person other than such depository
institution or trust company) thereof shall have a credit rating from
each of the Rating Agencies rating such investment in the highest
investment category granted thereby;
(c) commercial paper rated, at the time of the investment or
contractual commitment to invest therein, in the highest rating category
by each Rating Agency rating such commercial paper;
(d) investments in money market funds (including funds for
which the Trustee or any of its Affiliates is investment manager or
adviser) rated in the highest rating category by each Rating Agency
rating such money market fund (provided that, if such Rating Agency is
S&P, such rating shall be AAAm-G);
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
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Pooling Agreement
(f) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of which
are backed by the full faith and credit of the United States of America,
in either case entered into with a depository institution or trust
company (acting as principal) described in clause (b) above; or
(g) any other investment upon satisfaction of the Rating
Agency Condition with respect thereto.
"Eligible Obligor" shall mean, as of any date of
determination, each Obligor in respect of a Receivable that satisfies the
following eligibility criteria:
(a) it is "located" (within the meaning of Section
9-103(3)(d) of the UCC as in effect in the State of New York) in the
United States or is a "Designated Obligor" (as defined in the applicable
Supplement);
(b) it is neither a Federal Government Obligor nor a
State/Local Government Obligor;
(c) it is not the Seller or an Affiliate of the
Seller; and
(d) it is either (i) not the subject of any voluntary or
involuntary bankruptcy proceeding or (ii) a Qualifying DIP Obligor;
provided, however, that, if 35% or more of the Principal Amount of
Receivables of an Obligor (measured by the Principal Amount of
Receivables of such Obligor in the Trust) is reported as being aged 121
days or more after the respective due dates of such Receivables as at the
end of the Settlement Period immediately preceding the most recent
Settlement Report Date (commencing with the Settlement Report Date
occurring on December 10, 1997), such Obligor shall not be deemed an
Eligible Obligor until such time as the Servicer furnishes the Rating
Agencies with a report (which may be part of a Daily Report or a Monthly
Settlement Statement) indicating that less than 35% of the Principal
Amount of Receivables of such Obligor then in the Trust are aged 121 days
or more after the respective due dates of such Receivables.
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Pooling Agreement
"Eligible Receivable" shall mean, as of any date of
determination, each Receivable owing by an Eligible Obligor in existence as of
such date that satisfies the following eligibility criteria:
(a) it constitutes either (i) an account within the meaning
of Section 9-106 of the UCC of the state the law of which governs the
perfection of the interest granted in it, (ii) an instrument within the
meaning of Section 9-105 of such UCC, which shall be subject to
compliance with the delivery requirement set forth in subsection 2.01(b),
(iii) chattel paper within the meaning of Section 9-105 of such UCC,
which shall be subject to compliance with the delivery requirement set
forth in subsection 2.01(b), or (iv) a general intangible (including to
the extent that such Receivable includes interest, finance charges,
returned check or late charges on sales or similar charges) within the
meaning of Section 9-106 of such UCC;
(b) it is not a Defaulted Receivable of a Designated Obligor
or a Charged-Off Receivable of an Obligor that is not a Designated
Obligor;
(c) the goods related to it shall have been shipped or the
services related to it shall have been performed or in the case of a
Material Receivable, the material or parts shall have been received by
the Seller, or in the case of a Tooling Receivable, the Seller shall have
accrued the amount of such Receivable in accordance with its historical
practices and the rules and guidelines of the Obligor of such Receivable;
(d) it is denominated and payable only in U.S.
Dollars in the United States;
(e) it arose in the ordinary course of business from the
sale of goods, products or services of the Seller or is a Tooling
Receivable or a Material Rebate Receivable and, in each case, it arose in
accordance with the Policies of the Seller;
(f) it does not contravene any applicable law, rule or
regulation and the Seller is not in violation of any law, rule or
regulation in connection with it, in each case which in any way renders
such Receivable unenforceable or would otherwise impair in any material
respect the collectibility of such Receivable;
12
Pooling Agreement
(g) it is not a Receivable with an original repayment term
in excess of 90 days or is a Tooling Receivable or a Material Rebate
Receivable;
(h) it is not a Receivable purchased by the
Seller from any Person;
(i) it is not a Receivable for which the Seller has
established an offsetting specific reserve;
(j) it is not a Receivable in respect of which the Seller
has (i) entered into an arrangement with the Obligor pursuant to which
payment of any portion of the purchase price has been extended or
deferred, whether by means of a promissory note or by any other means, to
a date more than 60 days from the due date or (ii) altered the basis of
the aging from the initial due date for payment such that the final due
date extends to a date more than 60 days from its original invoice date
or (iii) otherwise made any modification except in the ordinary course of
business and consistent with the Policies of the Seller;
(k) all required consents, approvals or authorizations
necessary for the creation and enforceability of such Receivable and the
effective assignment and sale thereof by the Seller to the Company and by
the Company to the Trust shall have been obtained with respect to the
Receivable;
(l) the Seller is not in default in any material respect
under the terms of the contract, if any, from which such Receivable
arose;
(m) all right, title and interest in it has
been validly sold by the Seller to the Company pursuant
to the Receivables Sales Agreement;
(n) the Company or the Trust will have legal and beneficial
ownership therein free and clear of all Liens other than such Liens
described in clauses (i) and/or (iv) of the definition of Permitted Liens
and such Receivable has been the subject of either a valid transfer from
the Company to the Trust or, alternatively, the grant of a first priority
perfected security interest therein to the Trust free and clear of all
Liens other than such Liens described in clauses (i), (iii) and/or (iv)
of the definition of Permitted Liens;
13
Pooling Agreement
(o) it represents an enforceable obligation of the related
Obligor to pay the full Principal Amount thereof and it is not subject to
any dispute in whole or in part or to any asserted offset, counterclaim
or defense;
(p) it is at all times the legal, valid and binding
obligation of the Obligor thereon, enforceable against such Obligor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by
proceedings in equity or law);
(q) as of the related Receivables Purchase Date, neither the
Company nor the Seller has (i) taken any action in contravention of the
terms of any Transaction Document or (ii) failed to take any action
required to be taken by the terms of any Transaction Document that, in
either case, is likely to impair the rights therein of the Trustee or
Investor Certificateholders with respect to such Receivable;
(r) each of the representations and warranties with respect
to such Receivable made in the Receivables Sale Agreement by the Seller
is true and correct in all material respects; and
(s) at the time such Receivable was sold by the Seller to
the Company under the Receivables Sale Agreement, no event described in
subsection 7.01(d) of the Receivables Sale Agreement (without giving
effect to any requirement as to the passage of time) had occurred with
respect to the Seller;
provided that a Receivable which would otherwise not qualify as an Eligible
Receivable because of a failure to comply with clause (j) or (o) above shall
constitute an Eligible Receivable to the extent of the Principal Amount of
such Receivable minus the amount of such Receivable which fails to comply with
such clause (j) or (o).
"Eligible Successor Servicer" shall mean a Person which, at
the time of its appointment as Servicer (i) is legally qualified and has the
corporate power and authority to service the Receivables transferred to the
Trust in accordance with the terms of the Servicing Agreement, (ii) has
demonstrated the ability to service a
14
Pooling Agreement
portfolio of similar receivables in accordance with reasonable standards of
skill and care and (iii) has a combined capital and surplus of at least
$5,000,000.
"Enhancement" shall mean, with respect to any Series (i) the
funds on deposit in or credited to any bank account (or subaccount thereof) of
the Trust, (ii) any surety arrangement, any letter of credit, guaranteed rate
agreement, maturity guaranty facility, tax protection agreement, interest rate
swap, currency swap or other contract, agreement or arrangement, in each case
for the benefit of any Investor Certificateholders of such Series, as
designated in the applicable Supplement and (iii) the subordination of one
Class of Investor Certificates in a Series to another Class in such Series or
the subordination of any Interest to the Investor Certificates of such Series.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"Exchange Date" shall have the meaning, with respect to any
Series issued pursuant to an Exchange, specified in subsection 5.10(a).
"Exchange Notice" shall have the meaning, with respect to
any Series issued pursuant to an Exchange, specified in subsection 5.10(a).
"Exchange Register" shall have the meaning
specified in subsection 5.10(a).
"Exchangeable Company Interest" shall have the meaning
specified in subsection 3.01(b) and shall be exchangeable as provided in
Section 5.10.
"Federal Government Obligor" shall mean the United States
Federal government or any subdivision thereof or any agency, department or
instrumentality thereof.
"Force Majeure Delay" shall mean, with respect to the
Servicer, any cause or event which is beyond the control and not due to the
negligence of the Servicer which delays, prevents or prohibits the Servicer's
delivery of Daily Reports and/or Monthly Settlement Statements, including,
without limitation, acts of God or the elements and fire, but shall not
include strikes; provided that no such cause or event shall be deemed to be a
Force Majeure Delay unless the Servicer shall have
15
Pooling Agreement
given the Company and the Trustee written notice thereof as soon as reasonably
possible after the beginning of such delay.
"Ford" shall mean Ford Motor Company, a
Delaware corporation, and any of its Subsidiaries.
"Fractional Undivided Interest" shall mean a fractional
undivided interest, which, with respect to any Investor Certificate, can be
expressed as a percentage of the interest in the Trust Assets represented by
the Series or Class in which it was issued by taking the percentage equivalent
of a fraction the numerator of which is the principal amount of such Investor
Certificate and the denominator of which is the aggregate principal amount of
all Investor Certificates of such Series or Class.
"GAAP" shall mean generally accepted accounting principles
in the United States of America as in effect from time to time.
"General Opinion" shall mean, with respect to any action, an
Opinion of Counsel to the effect that (i) such action has been duly authorized
by all necessary corporate action on the part of the Servicer, the Seller or
the Company, as the case may be, and (ii) any agreement executed in connection
with such action constitutes a legal, valid and binding obligation of the
Servicer, the Seller or the Company, as the case may be, enforceable in
accordance with the terms thereof, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect, affecting the enforcement of creditors'
rights and except as such enforceability may be limited by general principles
of equity (whether considered in a proceeding at law or in equity).
"GM" shall mean General Motors Corporation, a
Delaware corporation, and any of its Subsidiaries.
"GM Agreements" shall mean (i) the Component Supply
Agreement, as amended, dated as of February 29, 1994, between the Servicer and
General Motors Corporation, (ii) the GMCL Purchase Order Agreement, as
amended, dated as of February 17, 1994, and effective on March 1, 1994,
between the Servicer and General Motors of Canada Limited ("GMCL"), (iii) the
Amended and Restated Memorandum of Understanding dated as of September 22,
16
Pooling Agreement
1997, as amended pursuant to an Extension Agreement dated as of September 22,
1997 between the Servicer and General Motors Corporation, (iv) the letter
agreement, dated as of February 20, 1996, between the Servicer and General
Motors Corporation and (v) any agreements entered into between the Servicer
and General Motors or GMCL succeeding or replacing the agreements in clauses
(i) and (ii), including "Lifetime Program Contracts".
"Government Obligor" shall mean any Federal
Government Obligor or any State/Local Government Obligor.
"Governmental Authority" shall mean any nation or
government, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Holders" shall mean the collective reference to the
Investor Certificateholders, the holders of Subordinated Company Interests and
the holders of the Exchangeable Company Interest.
"Indebtedness" shall mean, with respect to any Person at any
date, (a) all indebtedness of such Person for borrowed money, (b) any
obligation owed for the deferred purchase price of property or services which
purchase price is evidenced by a note or similar written instrument, (c) notes
payable and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money, (d) that portion of obligations
of such Person under capital leases which is properly classified as a
liability on a balance sheet in conformity with GAAP and (e) all liabilities
of the type described in the foregoing clauses (a) through (d) secured by any
Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
"Indemnified Person" shall have the meaning
specified in Section 10.19.
"Independent Public Accountants" shall mean, with respect to
any Person, any independent certified public accountants of nationally
recognized standing which constitute one of the accounting firms commonly
referred to as the "big six" accounting firms (or any successor thereto);
provided that such firm is independent with respect to such Person within the
17
Pooling Agreement
meaning of Rule 2-01(b) of Regulation S-X under the
Securities Act.
"Ineligible Receivable" shall have the meaning
specified in subsection 2.05(a).
"Initial Closing Date" shall mean October 29,
1997.
"Initial Invested Amount" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement for such
Series.
"Insolvency Event" shall mean the occurrence of any one or
more of the Early Amortization Events specified in paragraph (a) of Section
7.01.
"Interest" shall mean any interest in the Trust Assets
issued pursuant to the Agreement or any Supplement.
"Internal Operating Procedures Memorandum" shall mean the
internal operating procedures memorandum prepared by the Trustee as set forth
in Exhibit C hereto.
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time.
"Invested Amount" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement for such
Series.
"Invested Percentage" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement for such
Series.
"Investment" shall mean the making by the Company or the
Seller, as the case may be, of any advance, loan, extension of credit or
capital contribution to, the purchase of any stock, bonds, notes, debentures
or other securities of or any assets constituting a business unit of, or the
making by the Company or the Seller, as the case may be, of any other
investment in, any Person.
"Investment Earnings" shall have the meaning
specified in subsection 3.01(c).
18
Pooling Agreement
"Investor Certificateholder" shall mean the
holder of record of, or the bearer of, an Investor
Certificate.
"Investor Certificateholders' Interest" shall
have the meaning specified in subsection 3.01(b).
"Investor Certificates" shall mean the certificates executed
by the Company and authenticated by or on behalf of the Trustee, substantially
in the form attached to the applicable Supplement, but shall not include the
Exchangeable Company Interest, any Subordinated Company Interest or any other
Interest held by the Company.
"Issuance Date" shall mean, with respect to any Series, the
date of issuance of such Series, or the date of any increase to the Invested
Amount of such Series, as specified in the related Supplement.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security
interest in or on such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement
relating to such asset and (c) in the case of securities, any purchase option,
call or other similar right of a third party with respect to such securities;
provided, however, that if a lien is imposed under Section 412(n) of the
Internal Revenue Code or Section 302(f) of ERISA for a failure to make a
required installment or other payment to a plan to which Section 412(n) of the
Internal Revenue Code or Section 302(f) of ERISA applies, then such lien shall
not be treated as a "Lien" from and after the time (a)(i) any Person who is
obligated to make such payment pays to such plan the amount of such lien
determined under Section 412(n)(3) of the Internal Revenue Code or Section
302(f)(3) of ERISA, as the case may be, and provides to the Trustee, the
Rating Agencies and any Agent a written statement of the amount of such lien
together with written evidence of payment of such amount, or (ii) such lien
expires pursuant to Section 412(n)(4)(B) of the Internal Revenue Code or
Section 302(f)(4)(B) of ERISA and (b) the Rating Agency Condition shall have
been satisfied.
"Lien Creation" shall mean the creation,
incurrence, assumption or suffering to exist by the
Company or the Seller, as the case may be, of any Lien
19
Pooling Agreement
upon the Receivables, Related Property or the proceeds
thereof.
"Lockbox" shall mean the post office boxes and accounts
listed on Schedule 2 to the Receivables Sale Agreement to which the Obligors
are instructed to remit payments on the Receivables and/or such other post
office boxes as may be established pursuant to Section 2.03 of the Servicing
Agreement.
"Lockbox Account" shall mean the intervening account or
accounts used by a Lockbox Processor for deposit of funds received in a
Lockbox prior to their transfer to the Collection Account.
"Lockbox Agreement" shall mean a lockbox agreement
substantially in the form set forth as Exhibit A, as the same may be amended
from time to time in accordance with the Transaction Documents.
"Lockbox Processor" shall mean the depositary institution or
processing company (which may be the Trustee) that processes payments on the
Receivables sent by the Obligors thereon forwarded to a Lockbox.
"Margin Stock" shall have the meaning given to such term in
Regulation U of the Board.
"Material Adverse Effect" shall mean, when used (i) with
respect to the Seller, a materially adverse effect on the Receivables, taken
as a whole, (ii) with respect to the Seller or the Servicer, (a) a material
impairment of the ability of the Seller or the Servicer, as the case may be,
to perform its obligations under the Transaction Documents, (b) a material
impairment of the validity or enforceability of any of the Transaction
Documents against the Seller or the Servicer, (c) a material impairment of the
collectibility of the Receivables or (d) a material impairment of the
interests, rights or remedies of the Trustee or the Investor
Certificateholders under or with respect to the Transaction Documents or (iii)
with respect to the Company, (a) a materially adverse effect on the business,
operations, property or condition (financial or otherwise) of the Company, (b)
a material impairment of the ability of the Company to perform its obligations
under any Transaction Document to which it is a party, (c) a material
impairment of the validity or enforceability of any of the Transaction
Documents against the Company, (d) a material impairment of the
20
Pooling Agreement
collectibility of the Receivables or (e) a material impairment of the
interests, rights or remedies of the Trustee or the Investor
Certificateholders under or with respect to the Transaction Documents.
"Material Rebate Receivable" shall mean any Receivable
described in clause (y) of the definition thereof.
"Monthly Servicing Fee" shall have the meaning specified in
subsection 2.05(a) of the Servicing Agreement.
"Monthly Settlement Statement" shall have the meaning
specified in Section 4.02 of the Servicing Agreement.
"1940 Act" shall mean the Investment Company
Act of 1940, as amended.
"Obligor" shall mean, with respect to any Receivable, the
party obligated to make payments with respect to such Receivable, including
any guarantor thereof.
"Officer's Certificate" shall mean, with respect to any
Person, unless otherwise specified in this Agreement, a certificate signed by
the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President
(however denominated) or the Treasurer of such Person (or an officer holding
an office with equivalent or more senior responsibilities).
"Opinion of Counsel" shall mean a written opinion or
opinions of one or more counsel (who may be internal counsel) to the Company
or the Servicer, designated by the Company or the Servicer, as the case may
be, that is reasonably acceptable to the Trustee.
"Optional Repurchase Percentage" shall have, with respect to
any Series, the meaning specified in the related Supplement for such Series.
"Optional Termination Notice" shall have, with respect to
any Series, the meaning specified in the related Supplement for such Series.
"Outstanding Series" shall mean, at any time, a
Series issued pursuant to an effective Supplement for
21
Pooling Agreement
which the Series Termination Date for such Series has not
occurred.
"Overconcentration Amount" shall mean, at any date with
respect to an Eligible Obligor, the Principal Amount of otherwise Eligible
Receivables due from such Obligor which, expressed as a percentage of the
Principal Amount of all Eligible Receivables in the Trust at such date,
exceeds the percentage set forth below for the applicable ratings category of
that Obligor (or such larger percentage upon satisfaction of the Rating Agency
Condition);
Minimum Rating
S&P Percentage
--- ----------
A-1+ or AA- 15.0%
A-1 or A+ 15.0%
A-2 or BBB+ 12.0%
A-3 or BBB- 6.0%
Less than A-3 or
BBB-/Not rated 3.0%
; provided, however, that all Eligible Obligors that are Affiliates of each
other shall be deemed to be a single Eligible Obligor to the extent the
Servicer has actual knowledge of the affiliation and in that case, the
applicable debt rating for such group of Obligors shall be the debt rating of
the ultimate parent of the group; provided further that the Overconcentration
Amount for Ford and GM shall be zero.
If S&P issues no short-term rating with respect to such
Obligor (or such ultimate parent, as the case may be), then the percentage
applicable to such Obligor (or such ultimate parent, as the case may be) shall
be the percentage associated with the categories "Less than A-3 or BBB-/Not
rated". The ratings specified in the table are minimums for each percentage
category, so that a rating not shown in the table falls in the category
associated with the highest rating shown in the table that is lower than that
rating.
"Paying Agent" shall mean any paying agent and co-paying
agent appointed pursuant to Section 5.06 and, unless otherwise specified in
the related Supplement of
22
Pooling Agreement
any Outstanding Series and with respect to such Series, shall initially be The
Chase Manhattan Bank, as Trustee.
"Permitted Liens" shall mean, at any time, for
any Person:
(i) Liens created pursuant to this Agreement or
the Receivables Sale Agreement;
(ii) Liens for taxes, assessments or other governmental
charges or levies not yet due or which are being contested in good faith
by appropriate proceedings by such Person and with respect to which
reserves in conformity with GAAP have been provided on the books of such
Person;
(iii) unasserted rights of set-off, counterclaim or other
defenses with respect to such Receivable; and
(iv) any other Liens securing obligations not in excess of
$50,000 in the aggregate at any one time outstanding.
"Person" shall mean any individual, partnership,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Policies" shall mean, with respect to the Seller, the
credit and collection policies of the Seller, copies of which have been
previously delivered to the Trustee, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with the Transaction
Documents.
"Pooling and Servicing Agreements" shall have
the meaning specified in subsection 10.01(a).
"Potential Early Amortization Event" shall mean an event
which, with the giving of notice and/or the lapse of time, would constitute an
Early Amortization Event hereunder or under any Supplement.
"Potential Servicer Default" shall mean an event which, with
the giving of notice and/or the lapse of time, would constitute a Servicer
Default hereunder or under any Supplement.
23
Pooling Agreement
"Prepayment Request" shall have, with respect to any Series,
the meaning specified in the related Supplement.
"Principal Amount" shall mean, with respect to
any Receivable, the amount due thereunder.
"Principal Terms" shall have the meaning, with respect to
any Series issued pursuant to a Company Exchange, specified in subsection
5.10(c).
"Program Costs" shall have, with respect to any Series, the
meaning specified in the related Supplement for such Series.
"Publication Date" shall have the meaning
specified in subsection 7.02(a).
"Qualifying DIP Obligor" shall mean, as of any date of
determination, any Obligor satisfying the following criteria: (i) it is a
"debtor in possession", for which no trustee or examiner has been appointed,
and no application is pending for the appointment of a trustee or examiner, in
a case under Chapter 11 of the Bankruptcy Code in which no motion has been
made for an order liquidating all or any substantial portion of such debtor's
assets and no motion has been made for the conversion of such case to a case
under Chapter 7 of the Bankruptcy Code, (ii) in the case of any proposed
Qualifying DIP Obligor whose Receivables would, if included in the Trust
Assets, account for 1% or more of the aggregate Principal Amount of all
Receivables included in the Trust, each Agent has been given notice at least
five Business Days prior to any transfer of Receivables owing by such Obligor
to the Trust of the proposed inclusion of such Obligor as an Eligible Obligor
on the basis of its being a Qualifying DIP Obligor, (iii) no Agent has, in the
exercise of its reasonable discretion, given notice to the Company and the
Servicer that such Obligor shall not be included as an Eligible Obligor and
(iv) it has obtained the approval of a bankruptcy court to make payment on the
Receivables owing by it.
"Rating Agency" shall mean, with respect to each Outstanding
Series, any rating agency or agencies designated as such in the related
Supplement; provided that (i) in the event that no Outstanding Series has been
rated, then for purposes of the definitions of "Eligible Institution" and
"Eligible Investments", "Rating Agency"
24
Pooling Agreement
shall mean S&P; (ii) except as provided in (i), in the event no Outstanding
Series has been rated, any reference to "Rating Agency" or the "Rating
Agencies" shall be deemed to have been deleted herefrom, except that
references to the term "Rating Agency Condition" shall not be deemed deleted,
but shall be modified as set forth under the definition of such term.
"Rating Agency Condition" shall mean, with respect to any
action, that each Rating Agency shall have notified the Company, the Servicer,
any Agent and the Trustee in writing that such action will not result in a
reduction or withdrawal of the rating of any Outstanding Series or any Class
of any such Outstanding Series with respect to which it is a Rating Agency;
provided that in the event that no Outstanding Series has been rated, any
reference to a "Rating Agency Condition" shall be deemed to be a reference to
the prior written consent of the Agent with respect to such action.
"Receivable" shall mean the indebtedness and payment
obligations of any Person to the Seller (including, without limitation,
obligations constituting an account or general intangible evidenced by a note,
instrument, contract, security agreement, chattel paper or other evidence of
indebtedness or security and whether or not any invoice or other bill has been
rendered by the Seller or any other Person) arising from (x) a sale of
merchandise or services by the Seller (including, without limitation, any
right to payment for goods sold or for services rendered), (y) an obligation
of any Person to provide rebates to the Seller with respect to, or to
reimburse the Seller for, a portion of the costs of materials and parts to be
used in the manufacturing of products for such Person or its affiliates, or
(z) an obligation of any Person to pay for tooling or equipment purchased or
built by the Seller for the purpose of manufacturing products for such Person,
in each case including the right to payment of any interest, sales taxes,
finance charges, returned check or late charges and other obligations of such
Person with respect thereto; provided that any Tooling Receivable that is not
generated as part of the GMT 800 program or any other program providing for
periodic payments to the Seller shall not constitute a "Receivable" until the
Production Part Approval Process (PPAP) has been completed with respect to the
tooling giving rise to such Tooling Receivable; provided further that in no
event shall any intercompany or intracompany obligation owed to the
25
Pooling Agreement
Seller by any of its Subsidiaries, divisions or other operating units
constitute a "Receivable".
"Receivables Purchase Date" shall mean, with respect to any
Receivable, the Business Day on which the Company purchases such Receivable
from the Seller and transfers such Receivable to the Trust.
"Receivables Sale Agreement" shall mean the Receivables Sale
Agreement, dated as of the date hereof, among the Seller, the Servicer and the
Company, as amended, supplemented or otherwise modified from time to time in
accordance with the Transaction Documents.
"Record Date" shall mean, with respect to any Series, the
date specified as such in the applicable Supplement.
"Recoveries" shall mean all amounts collected (net of
out-of-pocket costs of collection) in respect of Charged-Off Receivables.
"Regulation G" shall mean Regulation G of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Related Property" shall mean, with respect to
each Receivable:
(a) all of the Seller's interest in the goods (including
returned goods), if any, relating to the sale which gave rise to such
Receivable;
(b) all other security interests or Liens, and the Seller's
interest in the property subject thereto, from time to time purporting to
secure payment of such Receivable, whether pursuant to the contract
related to such Receivable or otherwise, together with all financing
statements signed by an Obligor describing any collateral securing such
Receivable; and
26
Pooling Agreement
(c) all guarantees, insurance, letters of credit and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivable whether pursuant to the
contract related to such Receivable or otherwise;
including in the case of clauses (b) and (c), without limitation, pursuant to
any obligations evidenced by a note, instrument, contract, security agreement,
chattel paper, or other evidence of indebtedness or security.
"Reported Day" shall have the meaning specified in
subsection 4.01(a) of the Servicing Agreement.
"Repurchase Obligation Date" shall have the meaning specified
in subsection 2.05(a).
"Requirement of Law" for any Person shall mean the
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Responsible Officer" shall mean (i) when used with respect
to the Trustee, any officer within the Corporate Trust Office of the Trustee
including any Vice President, any Assistant Vice President, Trust Officer or
Assistant Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and (ii) when used with respect to any other Person, the Chairman of
the Board, any Vice Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President or the Treasurer of
such Person.
"Restricted Payments" shall have the meaning assigned in
subsection 2.08(m).
"Revolving Period" shall have, with respect to any
Outstanding Series, the definition assigned to such term in the related
Supplement.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.
or any successor thereto.
27
Pooling Agreement
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Seller" shall mean American Axle & Manufacturing, Inc.
"Seller Note" shall have the meaning specified in Section
8.01 of the Receivables Sale Agreement.
"Series" shall mean any series of Investor Certificates and
any related Subordinated Company Interest, the terms of which are set forth in a
Supplement.
"Series Account" shall mean any deposit, trust, escrow,
reserve or similar account maintained for the benefit of the Investor
Certificateholders and the holders of the related Subordinated Company Interest
of any Series or Class, as specified in any Supplement.
"Series Collection Subaccount" shall have the meaning
specified in subsection 3.01(a).
"Series Collection Sub-subaccount" shall have the meaning
specified in subsection 3.01(a).
"Series Non-Principal Collection Sub- subaccount" shall have
the meaning specified in subsection 3.01(a).
"Series Principal Collection Sub-subaccount" shall have the
meaning specified in subsection 3.01(a).
"Series Termination Date" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement for such
Series.
"Service Transfer" shall have the meaning specified in
Section 6.01 of the Servicing Agreement.
"Servicer" shall initially mean American Axle & Manufacturing
Inc., a Delaware corporation, and, after any Service Transfer, the Successor
Servicer.
"Servicer Default" shall have, with respect to any Series,
the meaning specified in Section 6.01 of the Servicing Agreement and, if
applicable, as supplemented by the related Supplement for such Series.
28
Pooling Agreement
"Servicer Site Review" shall mean a review performed by the
Trustee of the servicing operations of the Servicer's central site locations,
as described in Appendix A.
"Servicing Agreement" shall have the meaning specified in the
recitals hereto.
"Servicing Fee" shall have the meaning specified in
subsection 2.05(a) of the Servicing Agreement.
"Servicing Fee Percentage" shall mean 1% per annum.
"Settlement Period" shall mean each fiscal month of the
Servicer.
"Settlement Report Date" shall mean, except as otherwise set
forth in the applicable Supplement, the 10th day of each calendar month or, if
such 10th day is not a Business Day, the next succeeding Business Day.
"Special Allocation Settlement Report Date" shall have the
meaning specified in subsection 3.01(e).
"Specified Bankruptcy Opinion Provisions" shall mean the
factual assumptions (including those contained in the factual certificate
referred to therein) and the actions to be taken by the Seller or the Company,
in each case as specified in the legal opinion of Simpson Thacher & Bartlett
relating to certain bankruptcy matters delivered on each Issuance Date.
"Standby Liquidation System" shall mean a system by which
the Trustee will receive and store electronic information regarding Receivables
from the Servicer which may be utilized in the event of a liquidation of the
Receivables to be carried out by the Trustee, as described in Appendix B.
"State/Local Government Obligor" shall mean any state or
local government or any subdivision thereof or any agency, department, or
instrumentality thereof.
"Subordinated Interest Amount" shall have, with respect to
any Outstanding Series, the meaning specified in the related Supplement for
such Outstanding Series.
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Pooling Agreement
"Subordinated Company Interest" shall mean any Interest
issued to the Company pursuant to the Supplement for any Series which
represents an interest in the Trust Assets which is subordinated to the
Investor Certificates of such Series.
"Subordinated Interest Register" shall have the meaning
specified in subsection 5.10(d).
"Subsidiary" shall mean, as to any Person, a corporation,
partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person; provided that the Company shall
not constitute a "Subsidiary" of AAM.
"Successor Servicer" shall have the meaning specified in
Section 6.02 of the Servicing Agreement.
"Supplement" shall mean, with respect to any Series, a
supplement to this Agreement complying with the terms of Section 5.10(c),
executed in conjunction with the issuance of any Series.
"Target Receivables Amount" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement for such
Outstanding Series.
"Tax Opinion" shall mean, unless otherwise specified in the
Supplement for any Series with respect to such Series or any Class within such
Series, with respect to any action, an Opinion of Counsel (a) to the effect
that, for United States federal income tax purposes, (i) such action will not
adversely affect the characterization as debt of any Investor Certificates of
any Outstanding Series or Class not retained by the Company and for which the
Trustee has received an Opinion of Counsel that such Series or Class of Investor
Certificates will be characterized as debt for such purposes, (ii) in the case
of a Tax Opinion required under Section 5.10(a) of this Agreement, the Investor
Certificates of any new Series that are not retained by the Company will be
characterized as either debt or as equity interests in a partnership between the
Company and
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Pooling Agreement
one or more Classes of the Investor Certificateholders, which partnership will
not be considered a publicly traded partnership taxable as a corporation and
(iii) following such action, the Trust will not be an association (or publicly
traded partnership) taxable as a corporation and (b) with respect to state
taxation issues regarding the taxation of the Trust, in substantially the form
delivered at the Initial Closing Date; provided, that such opinion shall not
be at the expense of the Trustee.
"Termination Notice" shall have the meaning specified in
Section 6.01 of the Servicing Agreement.
"Tooling Receivable" shall mean any Receivable described in
clause (z) of the definition thereof.
"Transactions" shall have the meaning specified in
subsection 2.03(b).
"Transaction Documents" shall mean the collective reference
to this Agreement, the Servicing Agreement, each Supplement with respect to
any Outstanding Series, the Receivables Sale Agreement, the Lockbox
Agreements, the Investor Certificates and any other documents delivered
pursuant to or in connection therewith.
"Transfer Agent and Registrar" shall have the meaning
specified in Section 5.03 and shall initially be the Trustee.
"Transfer Deposit Amount" shall have the meaning specified
in subsection 2.05(b).
"Transferred Agreements" shall have the meaning assigned in
subsection 2.01(a)(v).
"Trust" shall mean the AAM Master Trust created by this
Agreement.
"Trust Assets" shall have the meaning specified in
subsection 2.01(a).
"Trust Termination Date" shall have the meaning specified in
subsection 9.01(a).
"Trustee" shall mean the institution executing this Agreement
as trustee, or its successor in interest, or any successor trustee
appointed as herein provided.
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Pooling Agreement
"Trustee Force Majeure Delay" shall mean any cause or event
that is beyond the control and not due to the gross negligence of the Trustee
that delays, prevents or prohibits the Trustee's performance of its duties
under Article III, including acts of God, floods, fire, explosions of any
kind, snowstorms and other irregular weather conditions, mass transportation
disruptions, any of power failure, telephone failure or computer failure in
the office of the Trustee, including without limitation, failure of the
Chemlink or any similar system or failure of the Fed Wire system operated by
the Federal Reserve Bank of New York and all similar events. The Trustee shall
notify the Company as soon as reasonably possible after the beginning of any
such delay.
"UCC" shall mean the Uniform Commercial Code, as amended
from time to time, as in effect in any specified jurisdiction.
"Variable Funding Certificates" or "VFC Certificates" shall
have the meaning specified in Section 5.10.
SECTION 1.02. Other Definitional Provisions. (a) All terms
defined in this Agreement, the Servicing Agreement or in any Supplement shall
have such defined meanings when used in any certificate or other document made
or delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.01, and accounting terms partly defined in Section 1.01 to the
extent not defined, shall have the respective meanings given to them under
GAAP. To the extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under GAAP, the definitions
contained herein shall control.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement; and Section,
subsection, Schedule, Exhibit and Appendix references contained in this
Agreement are references to Sections, subsections, Schedules, Exhibits and
Appendices in or to this Agreement unless otherwise specified.
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Pooling Agreement
(d) The definitions contained in Section 1.01 are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(e) Where a definition contained in Section 1.01 specifies
that such term shall have the meaning set forth in the related Supplement, the
definition of such term set forth in the related Supplement may be preceded by
a prefix indicating the specific Series or Class to which such definition
shall apply.
(f) Where reference is made in this Agreement or any related
Supplement to the principal amount of Receivables, such reference shall,
unless explicitly stated otherwise, be deemed a reference to the Principal
Amount (as such term is defined in Section 1.01) of such Receivables.
(g) Any reference herein or in any other Transaction
Document to a provision of the Bankruptcy Code, the Internal Revenue Code or
ERISA shall be deemed a reference to any successor provision thereto.
(h) To the extent that any provision of this Agreement or
any other Transaction Document requires that a calculation be performed with
respect to a date occurring prior to the effective date of such Transaction
Document, such calculation shall be performed as provided therein as though
such Transaction Document had been effective on and as of such prior date;
provided, that the party required to perform such calculation shall not be
responsible for not performing such calculation as of such prior date.
(i) Any reference herein to a Schedule, Exhibit or Appendix
to this Agreement shall be deemed to be a reference to such Schedule, Exhibit
or Appendix as it may be amended, modified or supplemented from time to time
to the extent that such Schedule, Exhibit or Appendix 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, Exhibit or Appendix) in compliance
with the terms of the Transaction Documents.
(j) Any reference herein to any representation, warranty or
covenant "deemed" to have
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Pooling Agreement
been made 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 Agreement, and no such reference shall be
interpreted as a reference to any implicit, inferred, tacit or otherwise
unexpressed representation, warranty or covenant.
(k) The words "include", "includes" or "including" shall be
interpreted as if followed, in each case, by the phrase "without limitation".
ARTICLE II
Conveyance of Receivables;
Representations, Warranties and Covenants
SECTION 2.01. Conveyance of Receivables. (a) By execution
and delivery of this Agreement, the Company does hereby assign, set over and
otherwise convey to the Trust for the benefit of the Holders, without recourse
(except as specifically provided herein), all its present and future right,
title and interest in, to and under:
(i) all Receivables, including those existing at the close
of business on the Initial Closing Date and all Receivables thereafter
arising from time to time until but not including the Trust Termination
Date;
(ii) the Related Property;
(iii) all Collections;
(iv) all rights (including rescission, replevin or
reclamation) relating to any Receivable or arising therefrom;
(v) each of the Receivables Sale Agreement and the Servicing
Agreement, including in respect of each agreement, (A) all rights of the
Company to receive monies due and to become due under or pursuant to such
agreement, whether payable as fees, expenses, costs or otherwise, (B) all
rights of the Company to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to such agreement, (C) claims of the
Company for damages arising out of or for breach of or default under such
agreement, (D) the right of the
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Pooling Agreement
Company to amend, waive or terminate such agreement, to perform
thereunder and to compel performance and otherwise exercise all remedies
thereunder and (E) all other rights, remedies, powers, privileges and
claims of the Company under or in connection with such agreement (whether
arising pursuant to such agreement or otherwise available to the Company
at law or in equity), including the rights of the Company to enforce such
agreement and to give or withhold any and all consents, requests,
notices, directions, approvals, extensions or waivers under or in
connection therewith (all of the foregoing set forth in subclauses (v)(A)
through (E), inclusive, the "Transferred Agreements");
(vi) the Collection Account, each Lockbox and each Lockbox
Account (collectively, the "Accounts"), including (A) all funds and other
evidences of payment held therein and all certificates and instruments,
if any, from time to time representing or evidencing any of such Accounts
or any funds and other evidences of payment held therein, (B) all
investments of such funds held in such Accounts and all certificates and
instruments from time to time representing or evidencing such
investments, (C) all notes, certificates of deposit and other instruments
from time to time hereafter delivered or transferred to, or otherwise
possessed by, the Trustee for and on behalf of the Company in
substitution for any of the then existing Accounts and (D) all interest,
dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any and all of the then existing Accounts; and
(vii) all proceeds of or payments in respect of any and all
of the foregoing clauses (i) through (vi) (including proceeds that
constitute property of the types described in clause (vi) above and
including Collections).
Such property described in the foregoing clauses (i) through (vii), together
with all investments and all monies on deposit in any other bank account or
accounts maintained for the benefit of any Holders and all monies available
under any Enhancement, to the extent paid to the Trust to be provided by the
provider of such Enhancement for any Series for payment to Holders shall
constitute the assets of the Trust (the "Trust Assets").
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Pooling Agreement
Subject to Section 5.09, although it is the intent of the
parties to this Agreement that the conveyance of the Company's right, title
and interest in, to and under the Receivables and the other Trust Assets
pursuant to this Agreement shall constitute a purchase and sale and not a
loan, in the event that such conveyance is deemed to be a loan, the Company
hereby grants to the Trustee for the benefit of the Holders a security
interest in all of the Company's present and future right, title and interest
in, to and under the Receivables and the other Trust Assets (it is understood
and agreed that the parties intend that such security interest shall be
perfected and first priority upon the filing of UCC-1 financing statements
with the appropriate authorities), and that this Agreement shall constitute a
security agreement under applicable law in favor of the Trustee, for the
benefit of the Holders.
(b) The assignment, setover and conveyance to the Trust
pursuant to Section 2.01(a) shall be made to the Trustee, on behalf of the
Trust, and each reference in this Agreement to such assignment, setover and
conveyance shall be construed accordingly. In connection with the foregoing
assignment, the Company and the Servicer agree to deliver to the Trustee each
Trust Asset evidencing a Receivable to be included as an Eligible Receivable
or any Related Property with respect thereto (including any original document
or instrument necessary to effect or to perfect such assignment) in which the
transfer of an interest is being perfected under the UCC or otherwise by
possession and not by filing a financing statement or similar document
(although a precautionary filing of a financing statement or similar document
is expected to be made in respect of each such Trust Asset). Without limiting
the generality of the foregoing sentence, the Company and the Servicer agree
to deliver or cause to be delivered to the Trustee an original of (i) any
promissory note or other instrument evidencing a Receivable sold to the Trust
and (ii) any chattel paper evidencing a Receivable sold to the Trust.
Notwithstanding the assignment of the Transferred Agreements
set forth in Section 2.01(a), the Company does not hereby assign or delegate
any of its duties or obligations under the Transferred Agreements to the Trust
or the Trustee and neither the Trust nor the Trustee accepts such duties or
obligations, and the Company shall continue to have the right and the
obligation to purchase Receivables from the Seller thereunder from time to
time and to consummate the other
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Pooling Agreement
transactions and take any actions contemplated thereby. The foregoing
assignment, set-over and conveyance does not constitute and is not intended to
result in a creation or an assumption by the Trust, the Trustee, any Investor
Certificateholder or the Company, in its capacity as a Holder, of any
obligation of the Servicer, the Company, the Seller or any other Person in
connection with the Receivables or under any agreement or instrument relating
thereto, including, without limitation, any obligation to any Obligor.
In connection with such assignment, the Company agrees to
record and file, or cause to be recorded or filed, at its own expense, any
financing statements (and continuation statements with respect to such
financing statements when applicable) or, where applicable, registrations in
the appropriate records, with respect to the Receivables now existing and
hereafter created and the other Trust Assets, in each case for which a
security interest may be perfected under the relevant UCC, legislation or
similar statute by such filing or registration, as the case may be, in each
case meeting the requirements of applicable law in such manner and in such
jurisdictions as are necessary to perfect and maintain perfection of the
assignment of the Receivables and such other Trust Assets (excluding returned
merchandise) to the Trust, and to deliver a file-stamped copy or certified
statement of such financing statement or registration or other evidence of
such filing or registration to the Trustee on or prior to the date of issuance
of any Investor Certificates, any Subordinated Company Interest or the
Exchangeable Company Interest. The Trustee shall be under no obligation
whatsoever to file such financing statement, or a continuation statement to
such financing statement, or to make any other filing or other registration
under the UCC, other relevant legislation or similar statute in connection
with such transfer. The Trustee shall be entitled to conclusively rely on the
filings or registrations made by or on behalf of the Company without any
independent investigation and the Company's obligation to make such filings as
evidence that such filings have been made.
In connection with such assignment, the Company further
agrees, at its own expense, on or prior to the Initial Closing Date and each
Issuance Date (a) to indicate, or to cause to be indicated, in its computer
files containing its master database of Receivables and to cause the Seller to
indicate in its records containing its master database of Receivables that
Receivables have
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Pooling Agreement
been conveyed to the Company or the Trust, as the case may be, pursuant to the
Receivables Sale Agreement or this Agreement, respectively, for the benefit of
the Holders and (b) to deliver or transmit or cause to be delivered or
transmitted to the Trustee computer tapes, diskettes or data transmission
containing a true and complete list of all Receivables transferred to the
Trust specifying for each such Receivable, as of the Cut-Off Date, at least
(i) the name of the Obligor and (ii) the aggregate Principal Amount of the
Receivables owing by such Obligor. Such tapes, diskettes or data transmission
shall constitute Schedule 1 to this Agreement and are hereby incorporated into
and made a part of this Agreement whether they are delivered together with or
separate from this Agreement.
SECTION 2.02. Acceptance by Trustee. (a) The Trustee
hereby acknowledges its acceptance on behalf of the Trust of all right, title
and interest in, to and under the property, now existing and hereafter created,
assigned to the Trust pursuant to Section 2.01 and declares that it shall
maintain such right, title and interest, upon the trust herein set forth, for
the benefit of all Holders. The Trustee further acknowledges that, prior to or
simultaneous with the execution and delivery of this Agreement, the Company
delivered to the Trustee the computer tapes containing a list of the Receivables
described in the last paragraph of Section 2.01. The Trustee shall maintain a
copy of Schedule 1, as delivered from time to time, at the Corporate Trust
Office.
(b) The Trustee shall have no power to create, assume or
incur indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
SECTION 2.03. Representations and Warranties of the Company
Relating to the Company. The Company hereby represents and warrants to the
Trustee, in its individual capacity, and the Trust (for the benefit of the
Holders with respect to each Outstanding Series) as of the Issuance Date of
such Series, that:
(a) Organization; Powers. The Company (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority
to own its property and assets and to carry on its business as now conducted
and as proposed to be
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Pooling Agreement
conducted, (iii) is qualified to do business in, and is in good standing in,
every jurisdiction where the nature of its business so requires, except where
the failure so to qualify could not reasonably be expected to result in a
Material Adverse Effect and (iv) has the corporate power and authority to
execute, deliver and perform its obligations under each of the Transaction
Documents and each other agreement or instrument contemplated hereby to which
it is or will be a party.
(b) Authorization. The execution, delivery and performance
by the Company of each of the Transaction Documents and the other transactions
contemplated hereby (collectively, the "Transactions") (i) have been duly
authorized by all requisite corporate and, if required, stockholder action and
(ii) will not (A) violate (1) any Requirement of Law or (2) any provision of
any Transaction Document or any other material Contractual Obligation to which
the Company is a party or by which it or any of its property is or may be
bound, (B) be in conflict with, result in a breach of or constitute (alone or
with notice or lapse of time or both) a default under, or give rise to any
right to accelerate or to require the prepayment, repurchase or redemption of
any obligation under, any Transaction Document or any other material
Contractual Obligation or (C) result in the creation or imposition of any Lien
upon or with respect to any property or assets now owned or hereafter acquired
by the Company (other than any Lien created hereunder or contem plated or
permitted hereby).
(c) Enforceability. This Agreement has been duly executed
and delivered by the Company and consti tutes, and each other Transaction
Document to which the Company is a party when executed and delivered by the
Company will constitute, a legal, valid and binding obligation of the Company
enforceable against it in accordance with its respective terms, subject (a) as
to enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally, from time to time in effect and (b) to general
principles of equity (whether enforcement is sought by a proceeding in equity
or at law).
(d) Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except
for (i) the filing of appropriate UCC financing
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Pooling Agreement
statements, (ii) such as have been made or obtained and are in full force and
effect and (iii) those that may be required under the state securities or
"blue sky" laws in connection with the offering or sale of certificates.
(e) Litigation; Compliance with Laws. (i) There are not any
actions, suits or proceedings at law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any business, property or
rights of the Company, an adverse decision in which could reasonably be
expected to have a Material Adverse Effect with respect to the Company.
(ii) The Company is not in default with respect to any
judgment, writ, injunction, decree or order of any Governmental Authority.
(f) Agreements. (i) The Company has no Contractual
Obligations other than (A) the Transaction Documents to which it is a party
(including the Seller Note) and (B) any other agreements or instruments that
the Company is not prohibited from entering into by subsection 2.08(g). The
Company is not subject to any corporate restriction that could reasonably be
expected to have a Material Adverse Effect.
(ii) The Company is not in default in any material respect
under any provision of any Transaction Document or any other material
Contractual Obligation to which it is a party or by which it or any of its
proper ties or assets are or may be bound.
(g) Federal Reserve Regulations. (i) The Company is not
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(ii) No part of the proceeds from the issuance of any
Investor Certificates will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that entails
a violation of, or otherwise fails to comply with, the provisions of the
Regulations of the Board, including Regulation G, U or X.
(h) Investment Company Act. Neither the Company nor the
Trust is an "investment company" as defined in, or subject to regulation under,
the 1940 Act.
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Pooling Agreement
(i) No Early Amortization Event. No Early Amortization
Event or Potential Early Amortization Event has occurred and is continuing.
(j) Tax Returns. The Company has filed or caused to be filed
all Federal, state or other material tax returns required to have been filed
by it and has paid or caused to be paid all taxes due and payable by it and
all assessments received by it to the extent that such failure to file or
nonpayment could reasonably be expected to have a Material Adverse Effect with
respect to the Company.
(k) Location of Records; Chief Executive Office. The offices
at which the Company keeps its records concerning the Receivables either (x)
are located at the addresses set forth for the Seller on Schedule 4 of the
Receivables Sale Agreement or (y) the Company has notified the Trustee of the
location thereof in accordance with the provisions of subsection 2.08(j) of
this Agreement. The chief executive office of the Company is located at the
address set forth on Schedule 3 and is the place where the Company is
"located" for the purposes of Section 9-103(3)(d) of the UCC as in effect in
the State of New York. As of the Initial Closing Date, the state and county
where the chief executive office of the Company is "located" for the purposes
of Section 9-103(3)(d) of the UCC as in effect in the State of New York has
not changed in the past four months.
(l) Solvency. No Insolvency Event with respect to the
Company has occurred and the transfer of the Receivables by the Company to the
Trust has not been made in contemplation of the occurrence thereof. Both prior
to and after giving effect to the transactions occurring on each Issuance Date,
(i) the fair value of the assets of the Company at a fair valuation will exceed
the debts and liabilities, subordinated, contingent or otherwise, of the
Company; (ii) the present fair salable value of the property of the Company will
be greater than the amount that will be required to pay the probable liability
of the Company on its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; (iii) the
Company will be able to pay its debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured; and
(iv) the Company will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is
proposed
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Pooling Agreement
to be conducted. For all purposes of clauses (i) through (iv) above, the
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability. The Company does not intend to, nor does it believe that it
will, incur debts beyond its ability to pay such debts as they mature, taking
into account the timing of and amounts of cash to be received by it and the
timing of and amounts of cash to be payable in respect of its Indebtedness.
(m) Ownership; Subsidiaries. All of the issued and
outstanding capital stock of the Company is owned, legally and beneficially, by
American Axle & Manufacturing, Inc. The Company has no Subsidiaries.
(n) Names. The legal name of the Company is as set forth in
this Agreement. The Company has no trade names, fictitious names, assumed
names or "doing business as" names.
(o) Liabilities. Other than (i) the liabilities, commitments
or obligations (whether absolute, accrued, contingent or otherwise) arising
under or in respect of the Transaction Documents, (ii) Program Costs and (iii)
immaterial amounts due and payable in the ordinary course of business of a
special-purpose company, the Company does not have any liabilities, commitments
or obligations (whether absolute, accrued, contingent or otherwise), whether due
or to become due.
(p) Collection Procedures. The Company and the Seller have
in place procedures pursuant to the Transaction Documents which are either
necessary or advisable to ensure the timely collection of Receivables.
(q) Lockbox Agreements; Lockbox Accounts. Except to the
extent otherwise permitted under the terms of this Agreement, (i) each Lockbox
Agreement to which the Company is party is in full force and effect and (ii)
each Lockbox Account set forth in Schedule 2 to the Receivables Sales
Agreement is free and clear of any Lien (other than any right of set-off
expressly provided for in the applicable Lockbox Agreement).
(r) No Material Adverse Effect. Since the incorporation of
the Company, no event has occurred which has had a Material Adverse Effect
with respect to the Company.
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Pooling Agreement
The representations and warranties as of the date made set
forth in this Section 2.03 shall survive the transfer and assignment of the
Trust Assets to the Trust. Upon discovery by a Responsible Officer of the
Company or the Servicer or by a Responsible Officer of the Trustee of a breach
of any of the foregoing representations and warranties with respect to any
Outstanding Series as of the Issuance Date of such Series, the party
discovering such breach shall give prompt written notice to the other parties
and to each Agent with respect to all Outstanding Series. The Trustee's
obligations in respect of any breach are limited as provided in Section
8.02(g).
SECTION 2.04. Representations and Warranties of the Company
Relating to the Receivables. The Company hereby represents and warrants to the
Trustee and the Trust, for the benefit of the Holders, with respect to each
Receivable transferred to the Trust as of the related Receivables Purchase
Date, unless, in either case, otherwise stated in the applicable Supplement or
unless such representation or warranty expressly relates only to a prior date,
that:
(a) Receivables Description. As of the CutOff Date, Schedule
1 to this Agreement sets forth a complete listing of all Receivables,
aggregated by Obligor, transferred to the Trust as of the Cut-Off Date
and the information contained therein specified in clauses (i) and (ii)
of the last paragraph of subsection 2.01(b) with respect to each such
Receivable is true and correct (except for any errors or omissions that
do not result in material impairment of the interests, rights or remedies
of the Trustee or the Investor Certificateholders with respect to any
Receivable) as of the Cut-Off Date. As of the Cut-Off Date, the aggregate
amount of Receivables owned by the Company is accurately set forth in
Schedule 1 hereto.
(b) No Liens. Each Receivable existing on the Initial
Closing Date or, in the case of Receivables transferred to the Trust
after the Initial Closing Date, on the date that each such Receivable
shall have been transferred to the Trust, has been conveyed to the Trust
free and clear of any Lien, except for Permitted Liens.
(c) Eligible Receivable. To the Company's knowledge, on the
Initial Closing Date, each Receivable transferred to the Trust that is
included in the
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Pooling Agreement
calculation of the initial Aggregate Receivables Amount is an Eligible
Receivable and, in the case of Receivables transferred to the Trust after
the Initial Closing Date, on the date such Receivable shall have been
transferred to the Trust, each such Receivable that is included in the
calculation of the Aggregate Receivables Amount on such date is an
Eligible Receivable.
(d) Filings. On or prior to the date that is 10 days after
the Initial Closing Date, all filings and other acts (including but not
limited to all filings and other acts necessary or advisable under the
UCC) shall have been made or performed such that the Trust has a first
priority perfected ownership or security interest in respect of all
Receivables on such date.
The representations and warranties as of the date made set
forth in this Section 2.04 shall survive the transfer and assignment of the
Trust Assets to the Trust. Upon discovery by a Responsible Officer of the
Company, the Servicer or a Responsible Officer of the Trustee of a breach of
any of the representations and warranties (or of any Receivable encompassed by
the representation and warranty in subsection 2.04(c) not being an Eligible
Receivable as of the relevant Receivables Purchase Date) with respect to each
Outstanding Series as of the Issuance Date of such Series, the party
discovering such breach shall give prompt written notice to the other parties
and to each Agent with respect to all Outstanding Series. The Trustee's
obligations in respect of any breach are limited as provided in Section
8.02(g).
SECTION 2.05. Adjustment Payment for Ineligible Receivables.
(a) Adjustment Payment Obligation. If (i) any representation or warranty under
subsections 2.04(a), (b) or (c) is not true and correct as of the date
specified therein with respect to any Receivable transferred to the Trust,
(ii) there is a breach of any covenant under subsection 2.08(c) with respect
to any Receivable, (iii) the Trust's interest in any Receivable is not a first
priority perfected owner ship or security interest at any time as a result of
any action taken by, or the failure to take action by, the Company or (iv) any
Eligible Receivable becomes subject to any asserted defense, dispute, offset
or counterclaim of any kind (other than as expressly permitted by this
Agreement or the Receivables Sale Agreement) provided that in the case of any
Eligible Receivable that becomes
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subject only in part to any of the foregoing, this subsection 2.05(a) shall
apply only to the portion thereof that is so subject (any Receivable as to
which the conditions specified in any of clause (i), (ii), (iii) or (iv) of
this subsection 2.05(a) exists is referred to herein as an "Ineligible
Receivable") then, after the earlier (the date on which such earlier event
occurs, the "Repurchase Obligation Date"), to occur of the discovery by the
Company of any such event that continues unremedied or receipt by the Company
of written notice given by the Trustee or the Servicer of any such event that
continues unremedied, the Company shall make an adjustment payment with
respect to such Ineligible Receivable on the terms and conditions set forth in
subsection 2.05(b). It is understood and agreed that any Eligible Receivable
(or portion thereof) that becomes subject to any asserted defense, dispute,
offset or counterclaim shall be the subject of a Company Repurchase Payment
(as defined herein).
(b) Adjustment Payment Amount. Subject to the last sentence
of this subsection 2.05(b), the Company shall make an adjustment payment with
respect to each Ineligible Receivable as required pursuant to sub section
2.05(a) by depositing in the Collection Account in immediately available funds
on the Business Day following the related Repurchase Obligation Date an amount
equal to the lesser of (x) the amount by which the Aggregate Target
Receivables Amount exceeds the Aggregate Receivables Amount (after giving
effect to the reduction thereof by the Principal Amount of such Ineligible
Receivable) and (y) the aggregate outstanding Principal Amount of all such
Ineligible Receivables (the "Transfer Deposit Amount"). Upon transfer or
deposit of the Transfer Deposit Amount or the making of any Seller Repurchase
Payment (as defined in the Receivables Sale Agreement), the Trust shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Company, without recourse, representation
or warranty, all the right, title and interest of the Trust in and to such
Ineligible Receivable (as defined herein and in the Receivables Sale
Agreement), all monies due and unpaid or to become due with respect thereto
and all proceeds thereof; and such repurchased Ineligible Receivable shall be
treated by the Trust as collected in full as of the date on which it was
transferred. The Trustee shall execute such documents and instruments of
transfer or assignment on behalf of the Trust and take
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such other actions as shall reasonably be requested in writing by the Company
to effect the conveyance of such Receivables pursuant to this subsection
2.05(b). Except as otherwise specified in any Supplement, the obligation of
the Company to pay such Transfer Deposit Amount with respect to any Ineligible
Receivables shall constitute the sole remedy respecting the event giving rise
to such obligation available to Investor Certificateholders (or the Trustee on
behalf of Investor Certificateholders). Any payment made by the Company
pursuant to this subsection 2.05(b) is referred to as a "Company Repurchase
Payment".
SECTION 2.06. Purchase of Investor Certificateholders'
Interest in Trust Portfolio. (a) In the event of any breach of any of the
representations and warranties set forth in paragraph (a), (b), (c), (d) or
(e)(i) of Section 2.03 as of the date made, which breach has a material
adverse effect on the interests of the Holders of an Outstanding Series under
or with respect to the Transaction Documents, then the Trustee, at the written
direction of holders evidencing more than 50% of the Invested Amount of each
affected Outstanding Series, shall notify the Company to purchase such
Outstanding Series and the Company shall be obligated to make such purchase on
the next Distribution Date occurring at least five Business Days after receipt
of such notice on the terms and conditions set forth below; provided, however,
that no such purchase shall be required to be made if, by such Distribution
Date, any such material adverse effect caused thereby shall have been cured.
(b) As required under Section 2.06(a), the Company shall
deposit into the Collection Account for credit to the applicable subaccount of
the Collection Account on the Business Day preceding such Distribution Date an
amount equal to the purchase price (as described in the next succeeding
sentence) for the Investor Certificateholders' Interest for such Outstanding
Series on such day. The purchase price for any such purchase will be equal to
(i) the Adjusted Invested Amount of such Outstanding Series on the date on
which the purchase is made plus (ii) an amount equal to all interest accrued
but unpaid on such Series up to the Distribution Date on which the
distribution of such deposit is scheduled to be made pursuant to Section 9.02
plus (iii) any other amount required to be paid in connection therewith
pursuant to any Supplement. Notwithstanding anything to the contrary in this
Agreement, the entire amount of the purchase price deposited in the Collection
Account shall be
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Pooling Agreement
distributed to the related Investor Certificateholders on such Distribution
Date pursuant to Section 9.02. If the Trustee gives notice directing the
Company to purchase the Investor Certificates of an Outstanding Series as
provided above, except as otherwise specified in any Supplement, the
obligation of the Company to purchase such Investor Certificates pursuant to
this Section 2.06 shall constitute the sole remedy respecting an event of the
type specified in the first sentence of this Section 2.06 available to the
applicable Investor Certificateholders (or the Trustee on behalf of such
Investor Certificateholders).
SECTION 2.07. Affirmative Covenants of the Company. The
Company hereby covenants that, until the Trust Termination Date occurs, the
Company shall:
(a) Financial Statements, Reports, etc.
(i) Furnish to the Trustee, each Agent and the
Rating Agencies, within 90 days after the end of each fiscal
year, the balance sheet and related statements of income,
stockholders' equity and cash flows showing the financial
condition of the Company as of the close of such fiscal year
and the results of its operations during such year, all
audited by the Company's Independent Public Accountants and
accompanied by an opinion of such accountants (which shall
not be qualified in any material respect) to the effect that
such financial statements fairly present the financial
condition and results of operations of the Company in
accordance with GAAP consistently applied;
(ii) Furnish to the Trustee, each Agent and the
Rating Agencies, within 45 days after the end of each of the
first three fiscal quarters of each fiscal year, the
Company's balance sheet and related income statement showing
the financial condition of the Company as of the close of
such fiscal quarter and the results of its operations during
such fiscal quarter and the then elapsed portion of the
fiscal year (and, beginning with the second fiscal year,
showing, on a comparative basis, such information as of and
for the corresponding dates and periods of the preceding
fiscal year), all certified by a Responsible Officer
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Pooling Agreement
of such Person as fairly representing the financial
condition and results of operations of the Company in
accordance with GAAP consis tently applied, subject to
normal year-end audit adjustments; and
(iii) Furnish to the Trustee and each Agent,
promptly, from time to time, such other information
regarding the operations, business affairs and financial
condition of the Company, or compliance with the terms of
any Transaction Document, in each case as any Agent or the
Trustee may reasonably request.
(b) Annual Opinion. Deliver to the Trustee and the Rating
Agencies an Opinion of Counsel substantially in the form of Exhibit B, by
January 31st of each fiscal year of the Company, the first such delivery
hereunder to occur in January 1999.
(c) Payment of Obligations; Compliance with Obligations.
Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all its obligations of whatever
nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books
of the Company or where the failure to pay, discharge or otherwise
satisfy such obligation would not have a Material Adverse Effect with
respect to the Company. The Company shall defend the right, title and
interest of the Holders in, to and under the Receivables and the other
Trust Assets, whether now existing or hereafter created, against all
claims of third parties claiming through or under the Company, the Seller
or the Servicer. The Company will duly fulfill all material obligations
on its part to be fulfilled under or in connection with each Receivable
and will do nothing to impair the rights of the Holders in such
Receivable.
(d) Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made
of all dealings and transactions in relation to its business and
activities; and permit representatives of the Trustee upon reasonable
advance notice to visit and inspect any of its properties and examine and
make abstracts from any of its books and records during
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Pooling Agreement
normal business hours on any Business Day and as often as may reasonably
be requested, subject to the Company's security and confidentiality
requirements, and to discuss the business, operations, properties and
financial and other condition of the Company with officers and employees
of the Company and with its Independent Public Accountants; provided that
the Trustee shall notify the Company prior to any contact with such
Independent Public Accountants and shall give the Company the opportunity
to participate in such discussions.
(e) Compliance with Law and Policies.
(i) Comply in all material respects with all
Requirements of Law, the provisions of the Transaction
Documents and all other material Contractual Obligations
applicable to the Company; and
(ii) Cause the Seller to perform its respective
obligations in accordance with and to comply in all material
respects with the Policies, as amended from time to time in
accordance with the Transaction Documents, in regard to the
Receivables and the Related Property.
(f) Purchase of Receivables. Purchase Receivables solely in
accordance with the Receivables Sale Agreement or this Agreement.
(g) Delivery of Collections. In the event that the Company
receives Collections directly from Obligors, deliver (which may be by
regular mail) or deposit such Collections into a Lockbox, a Lockbox
Account or the Collection Account within two Business Days after its
receipt thereof.
(h) Notices. Promptly (and, in any event, within five
Business Days after a Responsible Officer of the Company becomes aware of
such event) give written notice to the Trustee, each Rating Agency and
each Agent for any Outstanding Series of:
(i) the occurrence of any Early
Amortization Event or Potential Early
Amortization Event; and
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Pooling Agreement
(ii) any Lien not permitted by subsection 2.08(c)
on Receivables accounting for 5% or more of the aggregate
Principal Amount of all Receivables in the Trust.
(i) Lockboxes. (i) Maintain, and keep in full force and
effect, each Lockbox Agreement to which the Company is a party, except to
the extent otherwise permitted under the terms of this Agreement and the
other Transaction Documents and (ii) take all reasonable actions
necessary to ensure that each related Lockbox Account shall be free and
clear of, and defend each such Lockbox Account against, any writ, order,
stay, judgment, warrant of attachment or execution or similar process;
provided, however, that the Company may enter into any amendments or
modifications of a Lockbox Agreement that the Company reasonably deems
necessary to conform such Lockbox Agreement to the cash management system
of the Company or the Servicer and that are reasonably acceptable to the
Trustee and each Agent.
(j) Separate Corporate Existence.
(i) Maintain its own deposit account or accounts,
separate from those of any Affiliate, with commercial
banking institutions and ensure that the funds of the
Company will not be diverted to any other Person or for
other than corporate uses of the Company, nor will such
funds be commingled with the funds of the Seller or any
Subsidiary or Affiliate of the Seller;
(ii) To the extent that it shares the same officers
or other employees as any of its stockholders or Affiliates,
the salaries of and the expenses related to providing
benefits to such officers and other employees shall be
fairly allocated among such entities, and each such entity
shall bear its fair share of the salary and benefit costs
associated with all such common officers and employees;
(iii) To the extent that it jointly contracts with
any of its stockholders or Affiliates to do business with
vendors or service providers or to share overhead expenses,
the costs incurred in so doing shall be allocated fairly
among such entities, and
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Pooling Agreement
each such entity shall bear its fair share of such costs. To
the extent that the Company contracts or does business with
vendors or service providers where the goods and services
provided are partially for the benefit of any other Person,
the costs incurred in so doing shall be fairly allocated to
or among such entities for whose benefit the goods or
services are provided, and each such entity shall bear its
fair share of such costs. All material transactions between
the Company and any of its Affiliates, whether currently
existing or hereafter entered into, shall be only on an
arm's length basis, it being understood and agreed that the
transactions contemplated in the Transaction Documents meet
the requirements of this clause (iii);
(iv) Maintain office space separate from the office
space of the Seller and its Affiliates. To the extent that
the Company and any of its stockholders or Affiliates have
offices in the same location, there shall be a fair and
appropriate allocation of overhead costs among them, and
each such entity shall bear its fair share of such expenses;
(v) Issue separate financial statements prepared
not less frequently than quarterly and prepared in
accordance with GAAP;
(vi) Conduct its affairs strictly in accordance
with its articles of incorporation and observe all
necessary, appropriate and customary corporate formalities,
including, but not limited to, holding all regular and
special stockholders' and directors' meetings appropriate to
authorize all corporate action, keeping separate and
accurate minutes of its meetings, passing all resolutions or
consents necessary to authorize actions taken or to be
taken, and maintaining accurate and separate books, records
and accounts, including, but not limited to, payroll and
intercompany transaction accounts;
(vii) Not assume or guarantee any of the
liabilities of the Seller, the Servicer or any Affiliate
thereof; and
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Pooling Agreement
(viii) Take, or refrain from taking, as the case
may be, all other actions that are necessary to be taken or
not to be taken in order to (x) ensure that the assumptions
and factual recitations set forth in the Specified
Bankruptcy Opinion Provisions remain true and correct with
respect to the Company and (y) comply with those procedures
described in such provisions which are applicable to the
Company.
(k) Preservation of Corporate Existence. (i) Preserve and
maintain its corporate existence, rights, franchises and privileges in
the jurisdiction of its incorporation and (ii) qualify and remain
qualified in good standing as a foreign corporation in each jurisdiction
where such qualification is required other than any jurisdiction where
the failure so to qualify would not have a Material Adverse Effect with
respect to the Company.
(1) Assessments. Promptly pay and discharge all taxes,
assessments, levies and other governmental charges imposed on it except
such taxes, assessments, levies and other governmental charges that (i)
are being contested in good faith by appropriate proceedings and for
which the Company shall have set aside on its books adequate reserves and
(ii) the failure to pay, satisfy or discharge would not, in any event,
result in a Material Adverse Effect with respect to the Company.
(m) Net Worth. On the Initial Closing Date have a
consolidated common stockholders' equity, and thereafter maintain at all
times a net worth (as defined in accordance with GAAP), of at least
$8,000,000.
SECTION 2.08. Negative Covenants of the Company. The Company
hereby covenants that, until the Trust Termination Date occurs, it shall not
directly or indirectly:
(a) Accounting of Transfers. Prepare any consolidating
financial statements which shall account for the transactions
contemplated by the Receivables Sale Agreement in any manner other than
as a sale of Receivables by the Seller to the Company; provided, however,
that this subsection shall not apply for any tax or tax accounting
purposes.
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(b) Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except (i) Indebtedness evidenced by
the Seller Note; (ii) Indebtedness representing fees, expenses and
indemnities payable pursuant to and in accordance with the Transaction
Documents; and (iii) Indebtedness for services supplied or furnished to
the Company in an amount not to exceed $50,000 at any time outstanding.
(c) Limitation on Transfers of Receivables, etc. At any time
sell, transfer or otherwise dispose of any of the Receivables, Related
Property or the proceeds thereof pursuant to
(i) any Lien Creation except for Permitted Liens
set forth in clause (i) of the definition thereof; or
(ii) any Investment except in respect of or in
connection with (A) the purchase of Receivables and Related
Property from the Seller or its Subsidiaries or (B) an
advance or loan made to the Seller.
(d) Limitation on Guarantee Obligations. Become or remain
liable, directly or contingently, in connection with any Indebtedness or
other liability of any other Person, whether by guarantee, endorsement
(other than endorsements of negotiable instruments for deposit or
collection in the ordinary course of business), agreement to purchase or
repurchase, agreement to supply or advance funds, or otherwise other than
in connection with indemnification obligations of the Company to the
limited extent provided in the Company's certificate of incorporation and
by-laws (provided that any such indemnification obligations shall
constitute Company Subordinated Obligations) and/or under or in
connection with any Pooling and Servicing Agreement.
(e) Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or make any material
change in its present method of conducting business, or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially all
of its property, business or assets other than the assignments and
transfers contemplated hereby.
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Pooling Agreement
(f) Business of the Company. Engage at any time in any
business or business activity other than the acquisition of Receivables
pursuant to the Receivables Sale Agreement, the assignments and transfers
hereunder, the other transactions contemplated by the Transaction
Documents or any Pooling and Servicing Agreement, and any activity
incidental to the foregoing and necessary or convenient to accomplish the
foregoing, or enter into or be a party to any agreement or instrument
other than in connection with the foregoing, except those agreements or
instruments permitted under Section 2.08(g).
(g) Agreements. (i) Become a party to any indenture,
mortgage, instrument, contract, agreement, lease or other undertaking,
except the Transaction Documents, leases of office space, equipment or
other facilities for use by the Company in its ordinary course of
business, employment agreements, service agreements, agreements relating
to shared employees and the other Transaction Documents or any Pooling
and Servicing Agreement and agreements necessary to perform its
obligations under the Transaction Documents or any Pooling and Servicing
Agreement, (ii) issue any power of attorney (except to the Trustee or the
Servicer or except for the purpose of permitting any Person to perform
any ministerial functions on behalf of the Company that are not
prohibited by or inconsistent with the terms of the Transaction Documents
or any Pooling and Servicing Agreement), or (iii) amend, supplement,
modify or waive any of the provisions of the Receivables Sale Agreement
or any Lockbox Agreement or request, consent or agree to or suffer to
exist or permit any such amendment, supplement, modification or waiver or
exercise any consent rights granted to it thereunder or under the
Receivables Sale Agreement with respect to the GM Agreements unless (x)
such amendment, supplement, modification or waiver or such exercise of
consent rights would not have an adverse effect on the interests, rights
or remedies of the Trustee or the Investor Certificateholders of any
Outstanding Series under or with respect to the Transaction Documents or
(y) in the case of the Receivables Sale Agreement (other than with
respect to the GM Agreements), the Rating Agency Condition shall have
been satisfied with respect to any such amendments, supplements,
modifications or waivers.
(h) Policies. Make any change or modification
(or permit any change or modification to be made) to
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Pooling Agreement
the Policies that is materially adverse to the interests of the Company
or its assigns (including the Trustee and the Investor
Certificateholders), except (i) if such changes or modifications are
necessary under any Requirement of Law, (ii) if such changes or
modifications would not reasonably be likely to have a Material Adverse
Effect with respect to the Company or (iii) if the Rating Agency
Condition is satisfied with respect thereto; provided, however, that if
any change or modification, other than a change or modification permitted
pursuant to clause (i) or (ii) above, would be reasonably likely to have
a Material Adverse Effect on the interests of the Investor
Certificateholders of a Series which is not rated by a Rating Agency, the
consent of the applicable Agent (or if none, as specified in the related
Supplement) shall be required to effect such change or modification.
(i) Receivables Not To Be Evidenced by Promissory Notes.
Subject to the delivery requirement set forth in subsection 2.01(b), take
any action to cause any Receivable not evidenced by an "instrument" (as
defined in the UCC as in effect in any state in which the Company's, or
the Seller's chief executive offices or books and records relating to
such Receivable are located) upon origination to become evidenced by an
instrument, except in connection with its enforcement or collection of a
Defaulted Receivable.
(j) Offices. Move the location of its chief executive office
or of any of the offices where it keeps its records with respect to the
Receivables, or its legal head office to a new location within or outside
the state where such office is now located, without (i) 30 days' prior
written notice to the Trustee and each Rating Agency and (ii) taking all
actions reasonably requested by the Trustee (including but not limited to
all filings and other acts necessary or advisable under the UCC or
similar statute of each relevant jurisdiction) in order to continue the
Trust's first priority perfected ownership or security interest in all
Receivables now owned or hereafter created; provided, however, that the
Company shall not change the location of its chief executive office to a
state which is within the Tenth Circuit unless it delivers an opinion of
counsel reasonably acceptable to the Rating Agencies to the effect that
Octagon Gas Systems, Inc. v. Rimmer, 995 F.2d 948 (10th Cir. 1993) is no
longer controlling precedent in the Tenth Circuit.
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Pooling Agreement
(k) Change in Name. Change its name, identity or corporate
structure in any manner that would or is likely (i) to make any financing
statement or continuation statement (or other similar instrument)
relating to this Agreement seriously misleading within the meaning of
Section 9-402(7) of the UCC, or (ii) to impair the perfection of the
Trust's interest in any Receivable under any other similar law, without
30 days' prior written notice to the Trustee and each Rating Agency.
(l) Charter. Amend or make any change or modification to its
certificate of incorporation without first satisfying the Rating Agency
Condition (other than an amendment, change or modification made pursuant
to changes in law of the state of its incorporation or amendments to
change the Company's name (subject to compliance with clause (k) above),
registered agent or address of registered office).
(m) Limitation on Restricted Payments and Payments on Seller
Note. Declare or pay any dividend on, or make any payment on account of,
or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any
shares of any class of capital stock of the Company, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in
obligations of the Company (such declarations, payments, setting apart,
purchases, redemptions, defeasance, retirements, acquisitions and
distributions being herein called "Restricted Payments"), or make,
directly or indirectly, payments in any form in respect of the Seller
Note except, in either case, out of funds available to the Company in
accordance with the terms of any Pooling and Servicing Agreement and only
so long as (i) at the date that any such Restricted Payment or payment in
respect of the Seller Note is made, the Company shall have made all
payments in respect of its repurchase obligations pursuant to this
Agreement outstanding at such date and (ii) any such Restricted Payment
is effected in accordance with all corporate and legal formalities
applicable to the Company.
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Pooling Agreement
ARTICLE III
Rights of Holders and
Allocation and Application of Collections
THE FOLLOWING PORTION OF THIS ARTICLE III
IS APPLICABLE TO ALL SERIES.
SECTION 3.01. Establishment of Collection Account; Certain
Allocations. (a) The Trustee, for the benefit of the Holders, as their
interests appear in this Agreement, shall cause to be established and
maintained in the name of the Trust with an Eligible Institution or with the
corporate trust department of the Trustee or an Eligible Institution or an
affiliate of the Trustee or an Eligible Institution, a segregated trust
account (the "Collection Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Holders.
Schedule 2, which is hereby incorporated into and made a part of this
Agreement, identifies the Collection Account by setting forth the account
number of such account, the account designation of such account and the name
of the institution with which such account has been established. The
Collection Account shall be divided into individual subaccounts for each
Outstanding Series (each, respectively, a "Series Collection Subaccount" and,
collectively, the "Series Collection Subaccounts") and for the Company (the
"Company Collection Subaccount"). For administrative purposes only, the
Trustee shall establish or cause to be established for each Series, so long as
such Series is an Outstanding Series, sub-subaccounts of the Series Collection
Subaccounts with respect to such Series (respectively, the "Series Principal
Collection Sub-subaccount" and "Series Non-Principal Collection
Sub-subaccount" and, collectively, the "Series Collection Sub-subaccounts").
(b) Authority of the Trustee in Respect of the Collection
Account. (i) The Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Collection Account and in all
proceeds thereof. The Collection Account shall be under the sole dominion and
control of the Trustee for the benefit of the Holders. If, at any time, the
Servicer has actual notice or knowledge that any institution holding the
Collection Account has ceased to be an Eligible Institution, the Servicer
shall direct the Trustee to establish within 30 days a substitute account
therefor with an Eligible Institution, transfer any cash
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Pooling Agreement
and/or any Eligible Investments to such new account and from the date any such
substitute accounts are established, such account shall be the Collection
Account. Neither the Company, the Servicer, nor any person or entity claiming
by, through or under the Company, or the Servicer, shall have any right, title
or interest in, except to the extent expressly provided under the Transaction
Documents, or any right to withdraw any amount from, the Collection Account.
Pursuant to the authority granted to the Servicer in subsection 2.02(a) of the
Servicing Agreement, the Servicer shall have the power to instruct the Trustee
in writing to make withdrawals from and payments to the Collection Account for
the purposes of carrying out the Servicer's or Trustee's duties hereunder.
(ii) The Servicer agrees to give written direction (which
may be included within any Daily Report) in a timely manner to the Trustee to
apply all Collections with respect to the Receivables and to make all other
applications, allocations and distributions described in Article III and in
the Supplement with respect to each Outstanding Series.
(iii) Each Series of Investor Certificates shall represent
Fractional Undivided Interests as indicated in the Supplement relating to such
Series and the right to receive Collections and other amounts at the times and
in the amounts specified in this Article III (as supplemented by the
Supplement related to such Series) to be deposited in the Collection Account
and any other accounts maintained for the benefit of the Investor
Certificateholders or paid to the Investor Certificateholders (with respect to
each outstanding Series, the "Investor Certificateholders' Interest"). The
Exchangeable Company Interest shall represent the interest in the Trust not
represented by any Series of Investor Certificates or Subordinated Company
Interest then outstanding, including the right to receive Collections and
other amounts at the times and in the amounts specified in this Article III to
be paid to the Company (the "Exchangeable Company Interest"), and each
Subordinated Company Interest, if any, shall represent the interests granted
to such Subordinated Company Interest pursuant to the related Supplement;
provided, however, that no such Exchangeable Company Interest or Subordinated
Company Interest shall represent any interest in any Trust Account or any
other accounts maintained for the benefit of the Investor
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Pooling Agreement
Certificateholders, except as specifically provided in this Article III.
(c) Administration of the Collection Account. At the written
direction of the Servicer, funds on deposit in the Collection Account
available for investment, shall be invested by the Trustee in Eligible
Investments selected by the Company. All such Eligible Investments shall be
held by the Trustee for the benefit of the Investor Certificateholders.
Amounts on deposit in each Series Non-Principal Collection Sub-subaccount
shall, if applicable, be invested in Eligible Investments that will mature, or
that are payable or redeemable upon demand of the holder thereof, so that such
funds will be available on or before the Business Day immediately preceding
the next Distribution Date. None of such Eligible Investments shall be
disposed of prior to the maturity date with respect thereto unless such
disposition is reasonably determined by the Servicer to be necessary to
prevent a loss. All interest and investment earnings (net of losses and
investment expenses) on funds deposited in a Series Non-Principal Collection
Sub-subaccount shall be deposited in such sub-subaccount. Amounts on deposit
in the Series Principal Collection Sub-subaccount and any other sub-
subaccounts as specified in the related Supplement shall be invested in
Eligible Investments that mature, or that are payable or redeemable upon
demand of the holder thereof, so that such funds will be available not later
than the date which is specified in any Supplement. The Trustee, or its
nominee or custodian, shall maintain possession of the negotiable instruments
or securities, if any, evidencing any Eligible Investments from the time of
purchase thereof until the time of sale or maturity. Any earnings (net of
losses and investment expenses) (the "Investment Earnings") on such invested
funds in a Series Principal Collection Sub-subaccount and any other
sub-subaccounts as specified in the related Supplement will be deposited by
the Trustee in the related Series Non-Principal Collection Sub-subaccount. In
the absence of any written direction from the Company, all Eligible
Investments shall be in cash.
(d) Daily Collections. (i) Promptly following its receipt of
Collections in the form of available funds in the Lockbox Account, but in no
event later than the Business Day following such receipt (such later Business
Day, the "Deposit Date"), the Servicer shall transfer, or cause to be
transferred, all Collections on deposit (less the aggregate amount of set-offs
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permitted to be retained pursuant to any applicable Lockbox Agreement) in the
form of available funds in the Lockbox Accounts directly to the Collection
Account.
(ii) On the date of receipt of Aggregate Daily Collections,
provided that such Aggregate Daily Collections are received prior to 1:00 p.m.
on a Business Day, and if not, no later than the Business Day following each
Deposit Date, the Trustee shall (in accordance with the written directions
received pursuant to subsection (b)(ii) above) transfer from Aggregate Daily
Collections deposited into the Collection Account pursuant to subsection
(d)(i) above, to the respective Series Collection Subaccount, an amount equal
to the product of (x) the applicable Invested Percentage for such Outstanding
Series and (y) such Aggregate Daily Collections in accordance with the Daily
Report.
(iii) On the date of receipt of Aggregate Daily Collections,
provided that such Aggregate Daily Collections are received prior to 1:00 p.m.
on a Business Day, and if not, no later than the Business Day following each
Deposit Date, the Trustee shall (in accordance with the written directions
received pursuant to subsection (b)(ii) above) allocate funds transferred to
the Series Collection Subaccount for each Outstanding Series pursuant to
subsection (d)(ii) above to the Series Non- Principal Collection
Sub-subaccount and the Series Principal Collection Sub-subaccount of each such
Series in accordance with the Daily Report and the related Supplement for such
Series.
(iv) On the date of receipt of Aggregate Daily Collections,
provided that such Aggregate Daily Collections are received prior to 1:00 p.m.
on a Business Day, and if not, no later than the Business Day following each
Deposit Date, except as otherwise provided in a Supplement, the Trustee shall
(in accordance with the written directions received pursuant to subsection
(b)(ii) above) transfer to the Company Collection Subaccount the remaining
funds, if any, on deposit in the Collection Account on such date after giving
effect to transfers to be made pursuant to subsection (d)(ii) above.
(v) In the event that Collections relating to Receivables
with respect to which the Trustee has not received notice that such
Receivables have been sold to the Company are deposited in a Lockbox Account,
the Trustee shall promptly (in accordance with the written
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directions received pursuant to subsection (b)(ii) above), and not subject to
any conditions, transfer such Collections to the Seller and such Collections
shall not constitute Aggregate Daily Collections.
(e) Certain Allocations Following an Amortization Period.
(i) If, on any Settlement Report Date, an Amortization Period has occurred and
is continuing with respect to any Outstanding Series and at such Settlement
Report Date, a Revolving Period is still in effect with respect to any other
Outstanding Series (a "Special Allocation Settlement Report Date"), then the
Servicer shall make the following calculations:
(A) the amount (the "Allocable Charged-Off Amount") equal to
the excess, if any, of (I) the aggregate Principal Amount of Charged-Off
Receivables for the related Settlement Period over (II) the aggregate
Principal Amount of Recoveries received during the related Settlement
Period;
(B) the amount (the "Allocable Recoveries Amount") equal to
the excess, if any, of (I) the aggregate Principal Amount of Recoveries
received during the related Settlement Period over (II) the aggregate
Principal Amount of Charged-Off Receivables for the related Settlement
Period; and
(ii) If, on any Special Allocation Settlement Report Date,
either of the Allocable Charged-off Amount or the Allocable Recoveries Amount
is greater than zero for the related Settlement Period, the Trustee shall (in
accordance with written directions received pursuant to subsection (b)(ii)
above) make (A) a pro rata allocation to each Outstanding Series (based on the
Invested Percentage for such Series) of a portion (as determined in clause
(iii) below) of each such positive amount and (B) an allocation to the
Exchangeable Company Interest of the remaining portion of each such positive
amount.
(iii) With respect to each portion of the Allocable
Charged-Off Amount and the Allocable Recoveries Amount which is allocated to
an Outstanding Series pursuant to subsection 3.01(e)(ii), the Trustee shall
(in accordance with the written direction of the Servicer) apply each such
amount to such Series in accordance with the related Supplement for such
Series.
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(f) Allocations for the Exchangeable Company Interest. Until
the occurrence and continuation of an Early Amortization Period, on each
Business Day and, after the occurrence and continuation of an Early
Amortization Period and until the Trust Termination Date, on each Distribution
Date, after making all allocations required pursuant to subsection 3.01(d),
the Trustee shall (in accordance with the written direction of the Servicer)
transfer, using its reasonable efforts to transfer within two hours of receipt
of the Aggregate Daily Collections and the Daily Report and, if the Aggregate
Daily Collections and the Daily Report are received by the Trustee no later
than the close of business, New York City time, making such transfer no later
than the close of business, New York City time, on such Business Day, the
amounts on deposit in the Company Collection Subaccount to the holder of the
Exchangeable Company Interest or to such accounts or such Persons as the
holder of the Exchangeable Company Interest may direct in writing (which
direction may consist of standing instructions provided by the holder of the
Exchangeable Company Interest that shall remain in effect until changed by the
holder of the Exchangeable Company Interest in writing); provided, however,
that a transfer for purposes of this subsection 3.01(f) shall be deemed to
have occurred at such time as the Trustee instructs the Federal Reserve Bank
of New York of the outgoing amount; provided further that a failure of the
Trustee to transfer funds by the close of business, New York City time, shall
not be a breach of this subsection 3.01(f) if a Trustee Force Majeure Delay
occurs; in such event the Trustee shall use its reasonable efforts to transfer
funds within a reasonable time.
(g) Setoff. In addition to the provisions of Section 8.05,
(i) if the Company shall fail to make a payment as provided in this Agreement
or any Supplement, the Servicer or the Trustee may set off and apply any
amounts otherwise payable to the Company under any Pooling and Servicing
Agreement. The Company hereby waives demand, notice or declaration of such
setoff and application; provided that notice will promptly be given to the
Company of such setoff and application; provided further that failure to give
such notice shall not affect the validity of such setoff; and (ii) in the
event the Servicer shall fail to make a payment as provided in any Pooling and
Servicing Agreement, the Trustee may set off and apply any amounts otherwise
payable to the Servicer in its capacity as Servicer under the Transaction
Documents on account of such obligation. The Servicer hereby waives demand,
notice or declaration of such setoff and application; provided that notice
will promptly be given to the Servicer of such
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setoff; provided further that failure to give such notice shall not affect the
validity of such setoff.
(h) Allocation and Application of Funds. The
Servicer shall direct the Trustee in writing (which may be
given in the form of the Daily Reports and the Monthly
Settlement Statements) to apply all Collections with respect
to the Receivables as described in this Article III and in
the Supplement with respect to each Outstanding Series. The
Servicer shall direct the Trustee in writing to pay
Collections to the holder of the Exchangeable Company
Interest to the extent such Collections are allocated to the
Exchangeable Company Interest under subsection 3.01(f) and
as otherwise provided in Article III. Unless otherwise
provided in one or more Supplement, if the Trustee receives
any Daily Report at or before 1:00 p.m., New York City time,
on any Business Day, the Trustee shall make any applications
of funds required thereby on the same Business Day and
otherwise on the next succeeding Business Day.
THE REMAINDER OF ARTICLE III SHALL BE SPECIFIED
IN THE SUPPLEMENT WITH RESPECT TO EACH SERIES.
SUCH REMAINDER SHALL BE APPLICABLE ONLY TO THE
SERIES RELATING TO THE SUPPLEMENT IN WHICH
SUCH REMAINDER APPEARS.
ARTICLE IV
ARTICLE IV IS RESERVED
AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO THE SERIES RELATING THERETO.
ARTICLE V
The Investor Certificates and
Exchangeable Company Interest
SECTION 5.01. The Investor Certificates. The Investor
Certificates of each Series and any Class thereof shall be in fully registered
form and shall be substantially in the form of the exhibits with respect
thereto attached to the applicable Supplement. The Investor Certificates
shall, upon issue, be executed and delivered by the Company to the Trustee for
authentication and redelivery as provided in Section 5.02. Except as otherwise
set forth as to any Series or Class in the related Supplement, the Investor
Certificates shall be issued in minimum denominations of
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$_______ and in integral multiples of $100,000 in excess thereof. Unless
otherwise specified in any Supplement for any Series, the Investor
Certificates shall be issued upon initial issuance as a single global
certificate in an original principal amount equal to the Initial Invested
Amount with respect to such Series. The Company is hereby authorized to
execute and deliver each Investor Certificate and any documents related
thereto on behalf of the Trust. Each Investor Certificate shall be executed by
manual or facsimile signature on behalf of the Company by a Responsible
Officer. Investor Certificates bearing the manual or facsimile signature of
the individual who was, at the time when such signature was affixed,
authorized to sign on behalf of the Company or the Trustee shall not be
rendered invalid, notwithstanding that such individual has ceased to be so
authorized prior to or on the date of the authentication and delivery of such
Investor Certificates or does not hold such office at the date of such
Investor Certificates. No Investor Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Investor Certificate a certificate of authentication
substantially in the form provided for herein executed by or on behalf of the
Trustee by the manual signature of a duly authorized signatory, and such
certificate of authentication upon any Investor Certificate shall be
conclusive evidence, and the only evidence, that such Investor Certificate has
been duly authenticated and delivered hereunder. All Investor Certificates
shall be dated the date of their authentication but failure to do so shall not
render them invalid.
SECTION 5.02. Authentication of Investor Certificates. The
Trustee shall authenticate and deliver the initial Series of Investor
Certificates that is issued upon the written order of the Company in a form
reasonably satisfactory to the Trustee, to the holders of the initial Series
of Investor Certificates, against payment to the Company of the Initial
Invested Amount. The Investor Certificates shall be duly authenticated by or
on behalf of the Trustee in authorized denominations equal to (in the
aggregate) the Initial Invested Amount. Upon a Company Exchange as provided in
Section 5.10 and the satisfaction of certain other conditions specified
therein, the Trustee shall authenticate and deliver the Investor Certificates
of additional Series (with the designation provided in the applicable
Supplement) (or, if provided in any Supplement, the additional Investor
Certificates of an existing Series), upon the written order of the Company, to
the Persons designated in such Supplement. Upon the written order of the
Company, the Investor Certificates of any Series shall
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be duly authenticated by or on behalf of the Trustee, in authorized
denominations equal to (in the aggregate) the Initial Invested Amount of such
Series of Investor Certificates.
SECTION 5.03. Registration of Transfer and Exchange of
Investor Certificates. (a) The Trustee shall cause to be kept at the office or
agency to be maintained by a transfer agent and registrar (which may be the
Trustee) (the "Transfer Agent and Registrar") in accordance with the
provisions of Section 8.16 a register (the "Certificate Register") in which,
subject to such reasonable regulations as the Trustee may prescribe, the
Transfer Agent and Registrar shall provide for the registration of the
Investor Certificates and of transfers and exchanges of the Investor
Certificates as herein provided. The Company hereby appoints The Chase
Manhattan Bank as Transfer Agent and Registrar for the purpose of registering
the Investor Certificates and transfers and exchanges of the Investor
Certificates as herein provided. The Chase Manhattan Bank shall be permitted
to resign as Transfer Agent and Registrar upon 30 days' prior written notice
to the Company and the Servicer; provided, however, that such resignation
shall not be effective and The Chase Manhattan Bank shall continue to perform
its duties as Transfer Agent and Registrar until the Trustee has appointed a
successor Transfer Agent and Registrar reasonably acceptable to the Company
and such successor Transfer Agent and Registrar has accepted such appointment.
The provisions of Sections 8.01, 8.02, 8.03, 8.05 and 10.19 shall apply to The
Chase Manhattan Bank (or the Trustee to the extent it is so acting) also in
its role as Transfer Agent or Registrar, as the case may be, for so long as
The Chase Manhattan Bank (or the Trustee to the extent it is so acting) shall
act as Transfer Agent or Registrar, as the case may be.
The Company hereby agrees to provide the Trustee from time
to time sufficient funds, on a timely basis and in accordance with and subject
to Section 8.05, for the payment of any reasonable compensation payable to the
Transfer Agent and Registrar for its services under this Section 5.03 and
under Section 5.10. The Trustee hereby agrees that, upon the receipt of such
funds from the Company, it shall pay the Transfer Agent and Registrar such
amounts.
Upon surrender for registration of transfer of any Investor
Certificate at any office or agency of the Transfer Agent and Registrar
maintained for such purpose, the Company shall execute, and the Trustee shall,
upon the written order of the Company, authenticate and deliver, in the name
of the
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designated transferee or transferees, one or more new Investor Certificates in
authorized denominations of the same Series representing like aggregate
Fractional Undivided Interests and which bear numbers that are not
contemporaneously outstanding.
At the option of an Investor Certificateholder, Investor
Certificates may be exchanged for other Investor Certificates of the same
Series in authorized denominations of like aggregate Fractional Undivided
Interests, bearing numbers that are not contemporaneously outstanding, upon
surrender of the Investor Certificates to be exchanged at any such office or
agency of the Transfer Agent and Registrar maintained for such purpose.
Whenever any Investor Certificates of any Series are so
surrendered for exchange, the Company shall execute, and the Trustee shall,
upon the written order of the Company, authenticate and (unless the Transfer
Agent and Registrar is different from the Trustee, in which case the Transfer
Agent and Registrar shall) deliver, the Investor Certificates of such Series
which the Investor Certificateholder making the exchange is entitled to
receive. Every Investor Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of
transfer, with sufficient instructions, duly executed by the Investor
Certificateholder thereof or his attorney-in-fact duly authorized in writing
delivered to the Trustee (unless the Transfer Agent and Registrar is different
from the Trustee, in which case to the Transfer Agent and Registrar) and
complying with any requirements set forth in the applicable Supplement.
No service charge shall be made for any registration of
transfer or exchange of Investor Certificates, but the Transfer Agent and
Registrar may require any Investor Certificateholder that is transferring or
exchanging one or more Investor Certificates to pay a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Investor Certificates.
All Investor Certificates surrendered for registration of
transfer and exchange shall be canceled and disposed of in a customary manner
satisfactory to the Trustee.
The Company shall execute and deliver Investor
Certificates to the Trustee or the Transfer Agent and
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Registrar in such amounts and at such times as are necessary to enable the
Trustee and the Transfer Agent and Registrar to fulfill their respective
responsibilities under this Agreement and the Investor Certificates.
(b) The Transfer Agent and Registrar will maintain at its
expense in the Borough of Manhattan, The City of New York and, subject to
subsection 5.03(a), if specified in the related Supplement for any Series, any
other city designated in such Supplement, an office or offices or agency or
agencies where Investor Certificates may be surrendered for registration or
transfer or exchange.
(c) Unless otherwise stated in any related Supplement,
registration of transfer of Investor Certificates containing a legend relating
to restrictions on transfer of such Investor Certificates (which legend shall
be set forth in the Supplement relating to such Investor Certificates) shall
be effected only if the conditions set forth in the related Supplement are
complied with.
Investor Certificates issued upon registration or transfer
of, or in exchange for, Investor Certificates bearing the legend referred to
above shall also bear such legend unless the Company, the Servicer, the
Trustee and the Transfer Agent and Registrar receive an Opinion of Counsel
satisfactory to each of them, to the effect that such legend may be removed.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Investor
Certificates. If (a) any mutilated Investor Certificate is surrendered to the
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any Investor
Certificate and (b) there is delivered to the Transfer Agent and Registrar,
the Trustee and the Company such security or indemnity as may be required by
them to save the Trust and each of them harmless, then, in the absence of
actual notice to the Trustee or Transfer Agent and Registrar that such
Investor Certificate has been acquired by a bona fide purchaser, the Company
shall execute and, upon the written request of the Company, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Investor Certificate, a new Investor Certificate of
like tenor and aggregate Fractional Undivided Interest and bearing a number
that is not contemporaneously outstanding. In connection with the issuance of
any new Investor Certificate under this Section 5.04, the Trustee or the
Transfer Agent and Registrar may require the payment by the Investor
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Certificateholder of a sum sufficient to cover any tax or other governmental
expenses (including the fees and expenses of the Trustee and Transfer Agent
and Registrar) connected therewith. Any duplicate Investor Certificate issued
pursuant to this Section 5.04 shall constitute complete and indefeasible
evidence of ownership in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Investor Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners. At all times prior to
due presentation of an Investor Certificate for registration of transfer, the
Company, the Trustee, the Paying Agent, the Transfer Agent and Registrar, any
Agent and any agent of any of them may treat the Person in whose name any
Investor Certificate is registered as the owner of such Investor Certificate
for the purpose of receiving distributions pursuant to Article IV of the
related Supplement and for all other purposes whatsoever, and neither the
Trustee, the Paying Agent, the Transfer Agent and Registrar nor any agent of
any of them shall be affected by any notice to the contrary. Notwithstanding
the foregoing provisions of this Section 5.05, in determining whether the
Investor Certificateholders of the requisite Fractional Undivided Interests
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Investor 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 Investor Certificates which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Investor 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 Investor Certificates and that
the pledgee is not the Company, the Servicer or any Affiliate thereof.
SECTION 5.06. Appointment of Paying Agent. The
Paying Agent shall make distributions to Investor
Certificateholders from the Collection Account (and/or any
other account or accounts maintained for the benefit of
Investor Certificateholders as specified in the related
Supplement for any Series) pursuant to Articles III and IV.
The Trustee may revoke such power and remove the Paying
Agent if the Trustee determines in its sole discretion that
the Paying Agent shall have failed to perform its
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obligations under this Agreement in any material respect. Unless otherwise
specified in the related Supplement for any Series and with respect to such
Series, the Paying Agent shall initially be The Chase Manhattan Bank and any
co-paying agent chosen by The Chase Manhattan Bank. Each Paying Agent shall
have a combined capital and surplus of at least $50,000,000. The Paying Agent
shall be permitted to resign upon 30 days' prior written notice to the
Trustee. In the event that the Paying Agent shall so resign, the Trustee shall
appoint a successor to act as Paying Agent (which shall be a depositary
institution or trust company) reasonably acceptable to the Company which
appointment shall be effective on the date on which the Person so appointed
gives the Trustee written notice that it accepts the appointment. Any
resignation or removal of the Paying Agent and appointment of successor Paying
Agent pursuant to this Section 5.06 shall not become effective until
acceptance of appointment by the successor Paying Agent, as provided in this
Section 5.06. The Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Trustee to execute and deliver to the
Trustee an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustee that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Investor Certificateholders in trust for the benefit of the
Investor Certificateholders entitled thereto until such sums shall be paid to
such Investor Certificateholders. The Paying Agent shall return all unclaimed
funds to the Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Trustee. The provisions
of Sections 8.01, 8.02, 8.03, 8.05 and 10.19 shall apply to The Chase
Manhattan Bank (or the Trustee to the extent it is so acting) also in its role
as Paying Agent, for so long as The Chase Manhattan Bank (or the Trustee to
the extent it is so acting) shall act as Paying Agent. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
The Company hereby agrees to provide the Trustee from time
to time sufficient funds, on a timely basis and in accordance with and subject
to Section 8.05, for the payment of any reasonable compensation payable to the
Paying Agent for its services under this Section 5.06. The Trustee hereby
agrees that, upon the receipt of such funds from the Company, it shall pay the
Paying Agent such amounts.
SECTION 5.07. Access to List of Investor
Certificateholders' Names and Addresses. The Trustee will
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furnish or cause to be furnished by the Transfer Agent and Registrar to the
Company, the Servicer or the Paying Agent, within 10 Business Days after
receipt by the Trustee of a request therefor from the Company, the Servicer or
the Paying Agent, respectively, in writing, a list of the names and addresses
of the Investor Certificateholders as then recorded by or on behalf of the
Trustee. The reasonable costs and expenses incurred in connection with the
provision of such list shall constitute Program Costs under the Supplement for
the applicable Series. If three or more Investor Certificateholders of record
or any Investor Certificateholder of any Series or a group of Investor
Certificateholders of record representing Fractional Undivided Interests
aggregating not less than 10% of the Invested Amount of the related
Outstanding Series (the "Applicants") apply in writing to the Trustee, and
such application states that the Applicants desire to communicate with other
Investor Certificateholders of any Series with respect to their rights under
this Agreement or under the Investor Certificates and is accompanied by a copy
of the communication which such Applicants propose to transmit, then the
Trustee, after having been adequately indemnified by such Applicants for its
costs and expenses, shall transmit or shall cause the Transfer Agent and
Registrar to transmit, such communication to the Investor Certificateholders
reasonably promptly after the receipt of such application.
Every Investor Certificateholder, by receiving and holding
an Investor Certificate, agrees with the Trustee that neither the Trustee, the
Transfer Agent and Registrar, nor any of their respective agents, officers,
directors or employees shall be held accountable by reason of the disclosure
or mailing of any such information as to the names and addresses of the
Investor Certificateholders hereunder, regardless of the sources from which
such information was derived.
As soon as practicable following each Record Date, the
Trustee shall provide to the Paying Agent or its designee, a list of Investor
Certificateholders in such form as the Paying Agent may reasonably request.
SECTION 5.08. Authenticating Agent. (a) The
Trustee may appoint one or more authenticating agents with
respect to the Investor Certificates which shall be
authorized to act on behalf of the Trustee in authenticating
the Investor Certificates in connection with the issuance,
delivery, registration of transfer, exchange or repayment of
the Investor Certificates. Whenever reference is made in
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Pooling Agreement
this Agreement to the authentication of Investor Certificates by the Trustee
or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication on behalf of the Trustee by an authenticating agent
and a certificate of authentication executed on behalf of the Trustee by an
authenticating agent.
(b) Any institution succeeding to the corporate trust
business of an authenticating agent shall continue to be an authenticating
agent without the execution or filing of any paper or any further act on the
part of the Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Trustee. Upon the receipt by the Trustee
of any such notice of resignation and upon the giving of any such notice of
termination by the Trustee, the Trustee shall immediately give notice of such
resignation or termination to the Company. Any resignation of an
authenticating agent shall not become effective until acceptance of
appointment by the successor authenticating agent as provided in this Section
5.08. The Trustee may at any time terminate the agency of an authenticating
agent by giving notice of termination to such authenticating agent. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time an authenticating agent shall cease to be acceptable to the
Trustee, the Trustee promptly may appoint a successor authenticating agent.
Any successor authenticating agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent (other than an
Affiliate of the Trustee) shall be appointed unless reasonably acceptable to
the Trustee and the Company.
(d) The Company hereby agrees to provide the Trustee from
time to time sufficient funds, on a timely basis and in accordance with and
subject to Section 8.05, for the payment of any reasonable compensation
payable to each authenticating agent for its services under this Section 5.08.
The Trustee hereby agrees that, upon the receipt of such funds from the
Company it shall pay each authenticating agent such amounts.
(e) The provisions of Sections 8.01, 8.02, 8.03 and 8.05
shall be applicable to any authenticating agent.
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(f) Pursuant to an appointment made under this Section 5.08,
the Investor Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
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"This is one of the Investor Certificates described in the
Pooling Agreement dated as of October 29, 1997, among AAM Receivables
Corp., American Axle & Manufacturing, Inc., as Servicer, and The Chase
Manhattan Bank, as Trustee.
----------------
as Authenticating Agent
for the Trustee
By
---------------------"
Authorized Signatory
SECTION 5.09. Tax Treatment. It is the intent of the
Servicer, the Company, the Investor Certificateholders 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 Investor
Certificates will be considered as indebtedness of the Company secured by the
Trust Assets and the Trust will be treated as a mere security device or
arrangement. The Company, the Servicer and the Trustee, by entering into this
Agreement, each Investor Certificateholder, by its acceptance of its Investor
Certificate, and each beneficial owner of an Investor Certificate (or any
interest therein), by acquiring a beneficial ownership interest in such
Investor Certificate (or interest) agree to treat the Investor Certificates
and the Trust in such manner for such purposes. The provisions of this
Agreement and all related Transaction Documents shall be construed to further
these intentions of the parties. Each Certificateholder, by acceptance of its
Investor Certificate, and each beneficial owner of an Investor Certificate, by
its acquisition of a beneficial interest in an Investor Certificate, agree to
be bound by the provisions of this Section 5.09 and each Certificateholder
agrees that it will cause any beneficial owner of an Investor Certificate to
comply with this Section 5.09. This Section 5.09 shall survive the termination
of this Agreement and shall be binding on all transferees of any of the
foregoing persons.
SECTION 5.10. Exchangeable Company Interest.
(a) The Company may decrease the amount of the Exchangeable
Company Interest in exchange for (i) an increase in the
Invested Amount of a Class of Investor Certificates of an
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Outstanding Series and an increase in any related Subordinated Company
Interest in connection with an issuance of additional Investor Certificates of
such Outstanding Series or (ii) one or more newly issued Series of Investor
Certificates and any related newly issued Subordinated Company Interest (a
"New Series") (any such exchange, a "Company Exchange"). (A Company Exchange
shall not be necessary in connection with an increase in the Invested Amount
of any Investor Certificates issued in a Series with an Invested Amount that
may increase or decrease from time to time. Such Investor Certificates are
expected to be designated as "Variable Funding Certificates" or "VFC
Certificates".) The Company may perform a Company Exchange by notifying the
Trustee, in writing at least three days in advance (an "Exchange Notice") of
the date upon which the Company Exchange is to occur (an "Exchange Date"). Any
Exchange Notice shall state the designation of any Series (and/or class, if
applicable) to be issued (or supplemented) on the Exchange Date and, with
respect to each such Series (and/or class, if applicable): (a) its additional
or Initial Invested Amount, as the case may be, if any, which in the aggregate
at any time may not be greater than the current principal amount of the
Exchangeable Company Interest, if any, at such time, (b) its Certificate Rate
(or the method for allocating interest payments or other cash flow to such
Series), if any, and (c) whether such New Series will be a companion Series to
an Outstanding Series (an "Existing Companion Series", together with the New
Series, a "Companion Series"). On the Exchange Date, the Trustee shall (i)
authenticate and deliver any Investor Certificates evidencing an increase in
the Invested Amount of a Class of Investor Certificates or a newly issued
Series and (ii) permit the issuance of any related Subordinated Company
Interest, in each case, only upon delivery by the Company to the Trustee of
the following (together with the delivery by the Company to the Trustee of any
additional agreements, instruments or other documents as are specified in the
related Supplement): (a) a Supplement executed by the Company and specifying
the Principal Terms of such Series (provided that no such Supplement shall be
required for any increase in the Invested Amount of a Class of Investor
Certificates, and any related increase in the related Subordinated Company
Interest, unless it is so required by the related Supplement), (b) a Tax
Opinion addressed to the Trustee and the Trust, (c) a General Opinion
addressed to the Trustee and the Trust, (d) an Officer's Certificate
certifying that all conditions precedent to the authentication and delivery of
such Investor Certificates have been satisfied and upon which Officer's
Certificate the Trustee may conclusively rely,
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(e) written confirmation from each Rating Agency that the Company Exchange
will not result in the Rating Agency's reducing or withdrawing its rating on
any then Outstanding Series or any Class of any such Outstanding Series rated
by it, (f) written instructions of an officer of the Company specifying the
amount, Series, Investor Certificates and other Interests to be issued with
respect to such Company Exchange and (g) the applicable Investor Certificates
if necessary. Upon delivery of the items listed in clauses (a) through (g)
above, the Trustee shall cancel the applicable tendered Investor Certificates
and Subordinated Company Interest (and shall note such transaction in the
Subordinated Interest Register), as the case may be, and issue, as provided
above, such Series of Investor Certificates and allow the issuance of such
Subordinated Company Interest (and shall note such transaction in the
Subordinated Interest Register), if applicable, dated the Exchange Date. The
Trustee shall cause to be kept at the office or agency to be maintained by the
Transfer Agent and Registrar in accordance with the provisions of Section 8.16
a register (the "Exchange Register") in which, subject to such reasonable
regulations as the Trustee may prescribe, the Transfer Agent and Registrar
shall record all Company Exchanges and the amount of the Exchangeable Company
Interest following any such Company Exchange. There is no limit to the number
of Company Exchanges that the Company may perform under this Agreement. If the
Company shall, on any Exchange Date, retain any Investor Certificates issued
on such Exchange Date, it shall, prior to transferring any such Investor
Certificates to another Person, obtain a Tax Opinion. Additional restrictions
relating to a Company Exchange may be set forth in any Supplement.
(b) Upon any Company Exchange, the Trustee, in accordance
with the written directions of the Company, shall issue to the Company under
Section 5.01, for execution and redelivery to the Trustee for authentication
under Section 5.02, (i) one or more Investor Certificates representing an
increase in the Invested Amount of an Outstanding Series, or (ii) one or more
new Series of Investor Certificates. Any such Investor Certificates shall be
substantially in the form specified in the applicable Supplement and each
shall bear, upon its face, the designation for such Series to which each such
certificate belongs so selected by the Company.
(c) In conjunction with a Company Exchange, the parties
hereto shall, except as otherwise provided in subsection (a) above, execute a
supplement to this Agreement, which shall define, with respect to any
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additional Investor Certificates or newly issued Series, as the case may be:
(i) its name or designation, (ii) its additional or initial principal amount,
as the case may be (or method for calculating such amount), (iii) its coupon
rate (or formula for the determination thereof), (iv) the interest payment
date or dates and the date or dates from which interest shall accrue, (v) the
method for allocating Collections to Holders including the applicable Investor
Percentage, (vi) the names of any accounts to be used by such Series and the
terms governing the operation of any such accounts, (vii) the issue and terms
of a letter of credit or other form of Enhancement, if any, with respect
thereto, (viii) the terms on which the certificates of such Series may be
repurchased by the Company or may be remarketed to other investors, (ix) the
Series Termination Date, (x) any deposit account maintained for the benefit of
Holders, (xi) the number of Classes of such Series, and if more than one
Class, the rights and priorities of each such Class, (xii) the rights of the
holder of the Exchangeable Company Interest that have been transferred to the
holders of such Series, (xiii) the designation of any Series Accounts and the
terms governing the operation of any such Series Accounts, (xiv) provisions
acceptable to the Trustee concerning the payment of the Trustee's fees and
expenses and (xv) other relevant terms (all such terms, the "Principal Terms"
of such Series). The Supplement executed in connection with the Company
Exchange shall contain administrative provisions which are reasonably
acceptable to the Trustee.
(d) In order for a New Series to be part of a Companion
Series, the Supplement for the related Existing Companion Series must provide
for or permit the Amortization Period to commence on the Issuance Date for
such New Series, and on or prior to the Issuance Date for the New Series, the
Servicer and the Company shall take all actions, if any, necessary to cause
the Amortization Period for such Existing Companion Series to commence on such
Issuance Date. The proceeds from the issuance of the New Series shall be
deposited by the Company in the applicable Series Principal Collection
Sub-subaccount and the Company shall, on the Issuance Date for such New
Series, deposit into the applicable Series Non-Principal Sub-subaccount the
amount of interest that will accrue on the New Series over a period specified
in the related Supplement for such New Series. On each day on which principal
is paid to the holders of the Existing Companion Series, the Trustee shall
distribute to the Company from the applicable Series Principal Collection
Sub-subaccount of the New Series an amount (up to the amount of available
funds in such account) equal to the amount
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distributed on such day to the Investor Certificateholders of any Existing
Companion Series; provided that, after giving effect to such distributions,
the Aggregate Receivables Amount shall equal or exceed the sum of (i) the
Target Receivables Amount with respect to such Existing Companion Series on
such day, plus (ii) the Target Receivables Amount with respect to the New
Series on such day, plus (iii) the Target Receivables Amount with respect to
any other Outstanding Series on such day; provided further that the Trustee
may conclusively rely on the calculations of the Servicer of such amounts.
(e) The Company shall not transfer, assign, exchange or
otherwise dispose of the Exchangeable Company Interest or any Subordinated
Company Interest without (i) the prior satisfaction of the Rating Agency
Condition and (ii) delivery of a Tax Opinion. If the Company shall transfer,
assign, exchange or otherwise dispose of all or any portion of the
Exchangeable Company Interest or any Subordinated Company Interest, in
accordance with the preceding sentence, the Transfer Agent and Registrar shall
record the transfer, assignment, exchange or other disposition of (i) the
Exchangeable Company Interest in the Exchange Register and (ii) any
Subordinated Company Interest in a register maintained by the Transfer Agent
and Registrar at its office or agency (the "Subordinated Interest Register").
Any Holder who wishes to transfer, assign, exchange or otherwise dispose of
all or any portion of the Exchangeable Company Interest or any Subordinated
Company Interest held by it shall deliver instructions and a written
instrument of transfer, with sufficient instructions, duly executed by the
Holder or his attorney-in-fact duly authorized in writing delivered to the
Trustee (unless the Transfer Agent and Registrar is different from the
Trustee, in which case to the Transfer Agent and Registrar). No service charge
shall be made for any registration of transfer or exchange of all or any
portion of the Exchangeable Company Interest or any Subordinated Company
Interest, but the Transfer Agent and Registrar may require any Holder that is
transferring or exchanging all or any portion of the Exchangeable Company
Interest or any Subordinated Company Interest to pay a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of all or any portion of the Exchangeable Company
Interest or the Subordinated Company Interest. Notwithstanding any other
provision contained herein or in any Supplement, none of the Trustee, the
Registrar, the Transfer Agent, the Authenticating Agent, or agent of any of
them shall have any obligation or duty to monitor, determine or inquire as to
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the compliance with any restriction or requirement imposed hereunder or under
any Supplement with respect to the transfer, registration or authentication of
any Exchangeable Company Interest or Subordinated Company Interest (each, an
"Uncertificated Interest"), or any interest therein, other than to require the
delivery of the certifications or opinions of counsel described in this
Section 5.10 or contained in any such Supplement and to comply with the
related Exchange Notice to be delivered pursuant to Section 5.10(a) or the
written instructions delivered to the Trustee pursuant to Section 5.10(e)
hereof. At all times, the Company, the Trustee, the Paying Agent, the Transfer
Agent, and the Registrar, any agent of any of them may treat the Person in
whose name any Uncertificated Interest is registered in the Exchange Register
or the Subordinated Interest Register, as applicable, as the owner of such
Uncertificated Interest for all purposes whatsoever hereunder or under any
Supplement, and none of the Trustee, the Paying Agent, the Transfer Agent and
Registrar and no agent of any of them shall be affected by any notice to the
contrary.
(f) Except as specified in any Supplement for a related
Series, all Investor Certificates of any Series shall be equally and ratably
entitled as provided herein to the benefits hereof without preference,
priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions
of this Agreement and the applicable Supplement.
SECTION 5.11. Book-Entry Certificates. If specified in any
related Supplement, the Investor Certificates, or any portion thereof, upon
original issuance, shall be issued in the form of one or more typewritten
Investor Certificates representing the Book- Entry Certificates, to be
delivered to the depository specified in such Supplement (the "Depository")
which shall be the Clearing Agency, specified by, or on behalf of, the Company
for such Series. The Investor Certificates shall initially be registered on
the Certificate Register in the name of the nominee of such Clearing Agency,
and no Certificate Book-Entry Holder will receive a definitive certificate
representing such Certificate Book-Entry Holder's interest in the Investor
Certificates, except as provided in Section 5.13. Unless and until definitive,
fully registered Investor Certificates ("Definitive
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Certificates") have been issued to Investor Certificateholders pursuant to
Section 5.13 or the related Supplement:
(a) the provisions of this Section 5.11 shall be
in full force and effect;
(b) the Company, the Servicer and the Trustee may deal with
each Clearing Agency for all purposes (including the making of
distributions on the Investor Certificates) as the Investor
Certificateholder without respect to whether there has been any actual
authorization of such actions by the Certificate Book- Entry Holders with
respect to such actions;
(c) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Agreement, the provisions of
this Section 5.11 shall control; and
(d) the rights of Certificate Book-Entry Holders shall be
exercised only through the Clearing Agency and the related Clearing
Agency Participants and shall be limited to those established by law and
agreements between such related Certificate Book-Entry Holders and the
Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Depository Agreement, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Investor Certificates to
such Clearing Agency Participants.
Notwithstanding the foregoing, no Class or Series of
Investor Certificates may be issued as Book-Entry Certificates (but, instead,
shall be issued as Definitive Certificates) unless at the time of issuance of
such Class or Series, the Company and the Trustee receive an opinion of
independent counsel that the Investor Certificates of such Class or Series
will be treated as indebtedness for Federal income tax purposes.
SECTION 5.12. Notices to Clearing Agency. Whenever notice or
other communication to the Investor Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued to
Certificate Book-Entry Holders pursuant to Section 5.13, the Trustee shall
give all such notices and communications specified herein to be given to the
Investor Certificateholders to the Clearing Agencies.
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SECTION 5.13. Definitive Certificates. If (a) (i) the
Company advises the Trustee in writing that any Clearing Agency is no longer
willing or able to properly discharge its responsibilities under the
applicable Depository Agreement, and (ii) the Company is unable to locate a
qualified successor, (b) the Company, at its option, advises the Trustee in
writing that it elects to terminate the book-entry system through the Clearing
Agency or (c) after the occurrence of a Servicer Default or an Early
Amortization Event, Certificate Book-Entry Holders representing Fractional
Undivided Interests aggregating more than 50% of the Invested Amount held by
such Certificate Book-Entry Holders of each affected Series then issued and
outstanding advise the Clearing Agency through the Clearing Agency
Participants in writing, and the Clearing Agency shall so notify the Trustee,
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Certificate Book-Entry Holders, the
Trustee shall notify the Clearing Agency, which shall be responsible to notify
the Certificate Book-Entry Holders, of the occurrence of any such event and of
the availability of Definitive Certificates to Certificate Book-Entry Holders
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trustee shall issue the
Definitive Certificates. Neither the Company nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions.
ARTICLE VI
Other Matters Relating to the Company
SECTION 6.01. Liability of the Company. The Company shall be
liable for all obligations, covenants, representations and warranties of the
Company arising under or related to this Agreement or any Supplement. Except
as provided in the preceding sentence and otherwise herein, the Company shall
be liable only to the extent of the obligations specifically undertaken by it
in its capacity as Company hereunder.
SECTION 6.02. Limitation on Liability of the Company.
Subject to Sections 6.01 and 10.19, neither the Company nor any of its
directors or officers or employees or agents, in their capacity as transferor
of Receivables and Related Property hereunder, shall be under any liability to
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the Trust, the Trustee, the Holders or any other Person for any action taken
or for refraining from the taking of any action pursuant to this Agreement
whether or not such action or inaction arises from express or implied duties
under any Transaction Document; provided, however, that this provision shall
not protect the Company against any liability which would otherwise be imposed
by reason of wilful misconduct, bad faith or negligence in the performance of
any duties or by reason of reckless disregard of any obligations and duties
hereunder. The Company and any director or officer or employee or agent of the
Company may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person (other than, in the case of the
Company, the Company or the Servicer) respecting any matters arising
hereunder.
ARTICLE VII
Early Amortization Events
SECTION 7.01. Early Amortization Events. Unless modified
with respect to any Series of Investor Certificates by any related Supplement,
if any one of the following events (each, an "Early Amortization Event") shall
occur:
(a) (i) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Company in an
involuntary case under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect (the
Bankruptcy Code and all other such applicable laws being collectively,
"Applicable Insolvency Laws"), which decree or order is not stayed or any
other similar relief shall be granted under any applicable federal or
state law now or hereafter in effect and shall not be stayed; (ii) (A) an
involuntary case is commenced against the Company under any Applicable
Insolvency Law now or hereafter in effect, a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having
similar powers over the Company, or over all or a substantial part of the
property of the Company shall have been entered, an interim receiver,
trustee or other custodian of the Company for all or a substantial part
of the property of the Company is involuntarily appointed, a warrant of
attachment, execution or similar process is issued against any
substantial part of the property of the Company, and (B) any event
referred to in clause (ii)(A) above
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Pooling Agreement
continues for 60 days unless dismissed, bonded or discharged; (iii) the
Company shall at its request have a decree or an order for relief entered
with respect to it or commence a voluntary case under any Applicable
Insolvency Law, consent to the entry of a decree or an order for relief
in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any Applicable Insolvency Law, consent to the
appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; (iv) the making
by the Company of any general assignment for the benefit of creditors; or
(v) the Board of Directors of the Company adopts any resolution or
otherwise authorizes action to approve any of the foregoing;
(b) the Trust or the Company shall become an
"investment company" within the meaning of the 1940 Act;
(c) the Trust shall receive a written notice from the
Internal Revenue Service taking the position that the Trust should be
characterized for United States federal income tax purposes as a
"publicly traded partnership" or as an association taxable as a
corporation and counsel to the Company cannot provide an opinion that
such claim is without merit; or
(d) the Trustee shall be appointed Successor Servicer
pursuant to the Servicing Agreement;
then, an "Early Amortization Period" with respect to all Outstanding Series
shall commence without any notice or other action on the part of the Trustee
or any Investor Certificateholder immediately upon the occurrence of such
event. The Servicer shall notify each Rating Agency and the Trustee in writing
of the occurrence of any Early Amortization Period. Upon the commencement
against the Company of a case, proceeding or other action described in clause
(a)(ii) above, the Company shall cease to purchase Receivables from the Seller
and cease to transfer Receivables to the Trust, until such time, if any, as
such case, proceeding or other action is vacated, discharged, or stayed or
bonded pending appeal. If an Insolvency Event with respect to the Company
occurs, the Company shall immediately cease to transfer Receivables to the
Trust (or, if the Company has previously suspended the transfer of Receivables
to the Trust to comply with the preceding sentence, such suspension shall
become a permanent cessation of the transfer of Receivables to the Trust) and
shall promptly give written notice to the Trustee of such
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occurrence. Notwithstanding any cessation of the transfer to the Trust of
additional Receivables, Receivables transferred to the Trust prior to the
occurrence of such Insolvency Event and Collections in respect of such
Receivables and interest, whenever created, accrued in respect of such
Receivables, shall continue to be a part of the Trust.
Additional Early Amortization Events and the consequences
thereof may be set forth in each Supplement with respect to the Series
relating thereto.
SECTION 7.02. Additional Rights upon the Occurrence of
Certain Events. (a) Within 15 days of the Trustee's receipt of notice of the
occurrence of an Insolvency Event in accordance with Section 7.01, if the
Aggregate Invested Amount and all accrued and unpaid interest thereon have not
been paid to the Investor Certificateholders, then the Trustee, in accordance
with the written directions of the Servicer shall (i) publish a notice in an
Authorized Newspaper that an Insolvency Event has occurred and that the
Trustee intends to sell, dispose of or otherwise liquidate the Receivables and
the other Trust Assets in a commercially reasonable manner and (ii) send
written notice to the Investor Certificateholders and request instructions
from such holders, which notice shall request each Investor Certificateholder
to advise the Trustee in writing that it elects one of the following options:
(A) the Investor Certificateholder wishes the Trustee to instruct the Servicer
not to sell, dispose of or otherwise liquidate the Receivables and the other
Trust Assets, or (B) the Investor Certificateholder wishes the Trustee to
instruct the Servicer to sell, dispose of or otherwise liquidate the
Receivables and the other Trust Assets and to instruct the Servicer to
reconstitute the Trust upon the same terms and conditions set forth herein, or
(C) the Investor Certificateholder refuses to advise the Trustee as to the
specific action the Trustee shall instruct the Servicer to take. If after 60
days from the day notice pursuant to clause (i) above is first published (the
"Publication Date"), the Trustee shall not have received written instructions
of (x) holders of Certificates representing undivided interests in the Trust
aggregating in excess of 50% of the related Invested Amount of each Series (or
in the case of a series having more than one Class of Investor Certificates,
each Class of such series) selecting option (A) above and (y) if the owners of
the Exchangeable Company Interest do not include the Company (and following
the delivery of written notice in the form referred to above by the Company to
such owners), the owners thereof
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representing undivided interests in the Trust aggregating in excess of 50% of
the Company Interest, the Trustee shall instruct the Servicer to proceed to
sell, dispose of, or otherwise liquidate the Receivables and the other Trust
Assets in a commercially reasonable manner and on commercially reasonable
terms, which shall include the solicitation of competitive bids, and the
Servicer shall proceed to consummate the sale, liquidation or disposition of
the Receivables and the other Trust Assets as provided above with the highest
bidder therefor; provided, however, that if the allocable sale price, less all
reasonable fees, expenses and other amounts due hereunder to the Trustee, its
agents and counsel to the Trustee, to be realized from such sale, liquidation
or disposition would be less than the Aggregate Invested Amount plus accrued
and unpaid interest thereon through the Distribution Date next succeeding the
date of such sale, the Trustee must receive the prior unanimous consent of all
the Investor Certificateholders to such sale, liquidation or disposition. The
Company or any of its Affiliates shall be permitted to bid for the Receivables
and the other Trust Assets. In addition, the Company or any of its Affiliates
shall have the right to match any bid by a third person and be granted the
right to purchase the Receivables and the other Trust Assets at such matched
bid price. The Trustee may obtain a prior determination from any such
conservator, receiver or liquidator that the terms and manner of any proposed
sale, disposition or liquidation are commercially reasonable. The provisions
of Sections 7.01 and 7.02 shall be cumulative and not mutually exclusive. The
costs and expenses incurred by the Trustee in such sale shall be reimbursable
to the Trustee as provided in Section 8.05.
(b) The proceeds from the sale, disposition or liquidation
of the Receivables pursuant to subsection (a) above shall be treated as
Collections on the Receivables and such proceeds shall be released to the
Trustee in an amount equal to the amount of any expenses incurred by the
Trustee acting in its capacity either as Trustee or as liquidating agent under
this Section 7.02 that have not otherwise been reimbursed and the remainder,
if any, will be distributed to holders of each Series after immediately being
deposited in the Collection Account, in accordance with the provisions of
Section 3.01(e) and the related Supplement for such Series. After giving
effect to all such distributions, the remainder, if any, shall be allocated to
the Exchangeable Company Interest and shall be released to the holders of the
Exchangeable Company Interest pro rata based on the amount of the Exchangeable
Company Interest held by each holder thereof as indicated in the Exchange
Register.
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ARTICLE VIII
The Trustee
SECTION 8.01. Duties of Trustee. (a) The Trustee, prior to
the occurrence of a Servicer Default or Early Amortization Event of which a
Responsible Officer of the Trustee has actual knowledge and after the curing
of all Servicer Defaults and Early Amortization Events which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in the Pooling and Servicing Agreements or any
Supplement and no implied covenants or obligations shall be read into such
Pooling and Servicing Agreements against the Trustee. If a Servicer Default or
Early Amortization Event of which a Responsible Officer of the Trustee has
actual knowledge occurred (which has not been cured or waived), the Trustee
shall exercise the rights and powers vested in it by any Pooling and Servicing
Agreement or any Supplement and shall use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) The Trustee may conclusively rely as to the truth of the
statements and the correctness of the opinions expressed therein upon
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee; provided that (i) in the case of
any of the above which are specifically required to be furnished to the
Trustee pursuant to any provision of the Pooling and Servicing Agreements, the
Trustee shall, subject to Section 8.02, examine them to determine whether they
appear on their face to conform to the requirements of this Agreement and (ii)
in the case of any of the above as to which the Trustee is required to perform
procedures pursuant to the Internal Operating Procedures Memorandum, the
Trustee shall perform said procedures in accordance with the Internal
Operating Procedures Memorandum.
(c) Subject to subsection 8.01(a), no provision of this
Agreement or any Supplement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its own wilful misconduct; provided, however, that:
(i) the Trustee shall not be liable for an error of judgment
unless it shall be proved that the Trustee was negligent, or acted in bad
faith, in ascertaining the pertinent facts;
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Pooling Agreement
(ii) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith;
(iii) the Trustee shall not be charged with knowledge of any
failure by the Servicer to comply with any of its obligations, unless a
Responsible Officer of the Trustee obtains actual knowledge of such
failure or the Trustee receives written notice of such failure from the
Servicer, any Agent or any Investor Certificateholder;
(iv) the Trustee shall not be charged with knowledge of a
Servicer Default or Early Amortization Event unless a Responsible Officer
of the Trustee obtains actual knowledge of such event or the Trustee
receives written notice of such default or event from the Servicer, any
Agent or any holder of Investor Certificates;
(v) the Trustee shall not be liable for any investment
losses resulting from any investments of funds on deposit in the Accounts
or any subaccounts thereof (provided that such investments are Eligible
Investments); and
(vi) the Trustee shall have no duty to monitor the
performance of the Servicer or the Company, nor shall it have any
liability in connection with malfeasance or nonfeasance by the Servicer;
the Trustee shall have no liability in connection with compliance of the
Servicer or the Company with contractual, statutory or regulatory
requirements related to the Receivables; and the Trustee shall have no
duty to perform, except as otherwise required pursuant to the Internal
Operating Procedures Memorandum, any recalculation or verification of any
calculation with respect to data provided to the Trustee by the Servicer.
(d) The Trustee shall not be required to expend or risk its
own funds or otherwise incur any liability in the performance of any of its
duties under any Pooling and Servicing Agreement or any Supplement or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in any Pooling and Servicing Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of,
any obligations of the Servicer under such
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Agreement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Servicer in accordance with the terms of such Agreement.
(e) The Trustee shall not be required to advance its own
funds in the performance of any of its duties under any Pooling and Servicing
Agreement or any Supplement or the exercise of any of its rights or powers.
(f) Except as expressly provided in any Pooling and
Servicing Agreement, the Trustee shall have no power to vary the corpus of the
Trust.
(g) Provided that the Servicer and the Company shall have
provided to the Trustee promptly upon request all books, records and other
information reasonably requested by the Trustee and shall have provided the
Trustee with all necessary access to the properties, books and records of the
Servicer and the Company which the Trustee may reasonably require, then within
120 days following the Initial Closing Date, the Trustee shall have (i)
completed the Servicer Site Review and (ii) established the Standby
Liquidation System, and shall have notified the Servicer, each Rating Agency
and each Investor Certificateholder of such events.
(h) The Trustee shall prepare and deliver to the Company and
the Servicer, within 90 days of the Initial Closing Date, the Internal
Operating Procedures Memorandum. From and after such date, the Trustee shall
take such actions as are set forth in the Internal Operating Procedures
Memorandum unless prevented from doing so through no fault of the Trustee.
SECTION 8.02. Rights of the Trustee. Except as otherwise
provided in Section 8.01 and in the Internal Operating Procedures Memorandum:
(a) The Trustee may conclusively rely on and shall be
protected in acting on, or in refraining from acting in accord with, any
resolution, Officers Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, appraisal, bond, note or other paper or
document believed by it to be genuine and to have been signed or
presented to it pursuant to any Pooling and Servicing Agreement by the
proper party or parties.
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(b) The Trustee may consult with counsel and any Opinion of
Counsel and any advice of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel.
(c) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by any Pooling and Servicing
Agreement, or to institute, conduct or defend any litigation hereunder or
in relation hereto, at the request, order or direction of any of the
Holders, pursuant to the provisions of any Pooling and Servicing
Agreement, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; provided, however,
that nothing contained herein shall relieve the Trustee of the
obligations, upon the occurrence of a Servicer Default or Early
Amortization Event (which has not been cured), to exercise such of the
rights and powers vested in it by any Pooling and Servicing Agreement,
and to use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs. The right of the Trustee to perform
any discretionary act enumerated in this Agreement shall not be construed
as a duty, and the Trustee shall not be answerable for other than its
gross negligence or wilful misconduct in the performance of any such act.
(d) The Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by any Pooling and Servicing Agreement; provided that the Trustee
shall be liable for its gross negligence or wilful misconduct.
(e) The Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
direction, order, approval, bond, note or other paper or document, unless
requested in writing so to do by the holders of Investor Certificates
evidencing Fractional Undivided Interests aggregating more than 50% of
the Invested Amount of any Series which could be materially and adversely
affected if the Trustee does not perform such acts; provided, however,
that such holders of Investor Certificates shall
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indemnify and reimburse the Trustee for any liability or expense
resulting from any such investigation requested by them to the extent the
Trustee is not otherwise reimbursed hereunder; provided further that the
Trustee shall be entitled to make such further inquiry or investigation
into such facts or matters as it may reasonably see fit, and if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books and records of the Company,
personally or by agent or attorney, at the sole cost and expense of the
Company.
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through affiliates, agents or attorneys or a custodian or nominee, and
the Trustee shall not be responsible for any misconduct or gross
negligence on the part of, or for the supervision of, any such affiliate,
agent, attorney, custodian or nominee appointed with due care by it
hereunder.
(g) The Trustee shall not be required to make any initial or
periodic examination of any documents or records related to the
Receivables or the Accounts for the purpose of establishing the presence
or absence of defects, the compliance by the Company with its
representations and warranties or for any other purpose.
(h) In the event that the Trustee is also acting as Paying
Agent or Transfer Agent and Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VIII shall
also be afforded to such Paying Agent or Transfer Agent and
Registrar.
SECTION 8.03. Trustee Not Liable for Recitals. The Trustee
assumes no responsibility for the correctness of the recitals contained herein
and in the Investor Certificates (other than the certificate of authentication
on the Investor Certificates). Except as set forth in Section 8.15, the
Trustee makes no representations as to the validity or sufficiency of any
Pooling and Servicing Agreement, of the Investor Certificates (other than the
certificate of authentication on the Investor Certificates), of the
Exchangeable Company Interest, of any Interest, of any Subordinated Company
Interest, of any Receivable or related document or interest. The Trustee shall
not be accountable for the use or application by the Company of any of the
Investor Certificates, any Subordinated Company Interest or the Exchangeable
Company Interest or of the
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proceeds of such Investor Certificates, such Subordinated Company Interest or
the Exchangeable Company Interest or for the use or application of any funds
paid to the Company in respect of the Receivables or deposited in or withdrawn
from the Accounts or other accounts hereafter established to effectuate the
transactions contemplated herein and in accordance with the terms of any
Pooling and Servicing Agreement.
The Trustee shall not be accountable for the use or
application by the Servicer of any of the Investor Certificates or any
Interest or of the proceeds of such Investor Certificates or any Interest, or
for the use or application of any funds paid to the Servicer in respect of the
Receivables or deposited in or withdrawn from the Accounts or any Lockbox by
or at the direction of the Servicer or Lockbox Processor. The Trustee shall at
no time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable.
SECTION 8.04. Trustee May Own Investor Certificates. The
Trustee in its individual or any other capacity (a) may become the owner or
pledgee of Investor Certificates with the same rights as it would have if it
were not the Trustee and (b) may transact any banking and trust business with
the Company, the Servicer or the Seller as it would were it not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses. (a) The Servicer
covenants and agrees to pay, but only from funds available to it as the
Servicing Fee paid under the Servicing Agreement, to the Trustee annually in
advance on the Initial Closing Date and on or about each one-year anniversary
thereof, and the Trustee shall be entitled to receive, such reasonable
compensation as is agreed upon in writing between the Trustee and the Servicer
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trust hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee.
(b) The Trustee shall be entitled to reimbursement upon its
request for all reasonable expenses (including, without limitation, expenses
incurred in connection with notices, requests for documentation or other
communications to Holders), disbursements, losses, liabilities, damages and
advances incurred or made by the Trustee in accordance with any of the
provisions of any Pooling and Servicing Agreement or by reason of its status
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as Trustee under any Pooling and Servicing Agreement (including the reasonable
fees and expenses of its agents, any co-trustee and counsel) except any such
expense, disbursement, loss, liability, damage or advance as may arise from
its gross negligence or bad faith. To the extent the fees and expenses of the
Trustee are not paid on a current basis, the Trustee shall be entitled to be
paid such items from amounts that would be distributable to the Company under
Article III of this Agreement and, to the extent still unpaid in full, the
Company will pay or reimburse the Trustee upon its request for such items.
Notwithstanding anything contained in this Agreement to the contrary, the
Trustee shall not be entitled to reimbursement for any costs or expenses
incurred in connection with the review, negotiation, preparation, execution
and delivery of any of the Transaction Documents or in connection with the
issuance of any Investor Certificates on the Initial Closing Date except for
such costs and expenses as have been agreed to in writing between the Trustee
and Company. If the Trustee is appointed Successor Servicer in accordance with
the Servicing Agreement, the provisions of this Section 8.05 shall not apply
to expenses, disbursements, losses, liabilities, damages and advances made or
incurred by the Trustee in its capacity as Successor Servicer, which items
shall be paid, first, out of the Servicing Fee, second, from amounts which
would be distributable to the Company under Article III of this Agreement,
third, from amounts distributable to the Company pursuant to Section 9.04 and
fourth, to the extent still unpaid in full, the Company will pay or reimburse
the Trustee upon its request for such items. The provisions of this Section
8.05 shall apply to the reasonable expenses, disbursements and advances made
or incurred by the Trustee, or any other Person, in its capacity as
liquidating agent, to the extent not otherwise paid. The covenants to pay the
expenses, disbursements, losses, liabilities, damages and advances provided
for in this Section shall survive the termination of any Pooling and Servicing
Agreement and shall be binding on the Company, the Servicer and any Successor
Servicer. The Company's and the Servicer's covenants and agreements contained
in this Section 8.05 shall survive the termination of this Agreement.
SECTION 8.06. Eligibility Requirements for Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state thereof
authorized under such laws to exercise corporate trust powers, having (or
having a holding company parent with) a combined capital and surplus of at
least $50,000,000 and subject to
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supervision or examination by federal or state authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for
the purpose of this Section 8.06, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 8.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07.
SECTION 8.07. Resignation or Removal of Trustee. (a) Subject
to paragraph (c) below, the Trustee may at any time resign and be discharged
from the trust hereby created by giving written notice thereof to the Company,
the Servicer and the Rating Agencies. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted such appointment within
30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 hereof and shall fail to resign
after written request therefor by the Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent,
or if a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation,
then the Company may remove the Trustee and promptly appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor
trustee.
(c) Any resignation or removal of the Trustee and
appointment of successor trustee pursuant to any of the provisions of this
Section 8.07 shall not become effective until acceptance of appointment by the
successor trustee as provided in Section 8.08.
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(d) The obligations of the Company described in Section 8.05
hereof and the obligations of the Servicer described in Section 8.05 hereof
and Section 5.01 of the Servicing Agreement shall survive the removal or
resignation of the Trustee as provided in this Agreement.
(e) No Trustee under this Agreement shall be personally
liable for any action or omission of any successor trustee.
SECTION 8.08. Successor Trustee. (a) Any successor trustee
appointed as provided in Section 8.07 shall execute, acknowledge and deliver
to the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee herein. The predecessor Trustee shall
deliver to the successor trustee all documents or copies thereof, at the
expense of the Servicer, and statements held by it hereunder; and the Company
and the predecessor Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor trustee all such rights, power, duties
and obligations. The Servicer shall immediately give notice, but in no event
less than 10 days prior to any such resignation or removal, to each Rating
Agency upon the appointment of a successor trustee.
(b) No successor trustee shall accept appointment as
provided in this Section 8.08 unless at the time of such acceptance such
successor trustee shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of
such succession hereunder to all Holders at their addresses as shown in the
Certificate Register, the Exchange Register or the Subordinated Interest
Register, as applicable.
SECTION 8.09. Merger or Consolidation of Trustee. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to the corporate trust business of the Trustee, shall be the
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successor of the Trustee hereunder, provided such corporation shall be
eligible under the provisions of Section 8.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee shall promptly
give notice (except to the extent prohibited under any Requirement of Law or
Contractual Obligation), but in no event less than 10 days prior to any such
merger or consolidation, to the Company, the Servicer and the Rating Agencies
upon any such merger or consolidation of the Trustee. Information as to such
merger or consolidation that is made publicly available by the Trustee in at
least one Authorized Newspaper shall be deemed to satisfy the notice
requirement of this Section 8.09.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of any Pooling and Servicing
Agreement, at any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of the Trust may at the time be located,
the Trustee shall have the power and may execute and deliver all instruments
to appoint one or more persons to act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all or any part of the Trust, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Holders, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 and no notice to Holders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.08. The Trustee shall promptly notify each Rating Agency of the
appointment of any co-trustee.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Trustee joining in such
act), except to the extent that under any statute of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder), the Trustee
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shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding
of title to the Trust or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of any Pooling and Servicing Agreement, specifically
including every provision of any Pooling and Servicing Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Servicer and the Company.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect to any Pooling and Servicing Agreement on its behalf and in its
name. If any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
SECTION 8.11. Tax Returns. In the event the
Trust shall be required to file U.S. Federal, state, local
or foreign income tax returns, the Company shall prepare and
file or shall cause to be prepared and filed any such tax
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returns required to be filed by the Trust and shall remit such tax returns to
the Trustee for signature at least five Business Days before such tax returns
are due to be filed (including extensions). The Company shall also prepare or
shall cause to be prepared all U.S. Federal tax information in connection with
this Agreement required by law to be distributed to Holders and shall deliver
such information to the Trustee at least five Business Days prior to the date
it is required by law to be distributed to the Holders. The Trustee, upon
request, will furnish the Company with all such information known to the
Trustee as may be reasonably determined by the Company to be required in
connection with the preparation of all U.S. Federal, state, local or foreign
income tax returns of the Trust, and shall, upon the Company's written
request, execute such tax returns. In no event shall the Trustee in its
individual capacity be liable for any liabilities, costs or expenses of the
Trust, the Holders, the Company, or the Servicer arising under any U.S.
Federal, state, local or foreign income tax law or regulation, including,
without limitation, excise taxes or any other tax imposed by a Governmental
Authority on or measured by income (or any interest or penalty with respect
thereto or arising from any failure to comply therewith). The Trustee shall
not be required to determine whether any filing of tax returns is required.
SECTION 8.12. Trustee May Enforce Claims Without Possession
of Investor Certificates. All rights of action and claims under any Pooling
and Servicing Agreement or the Investor Certificates may be prosecuted and
enforced by the Trustee without the possession of any of the Investor
Certificates or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee. Any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Investor
Certificateholders in respect of which such judgment has been obtained.
SECTION 8.13. Suits for Enforcement. If a Servicer Default
shall occur and be continuing, the Trustee may, as provided in Section 6.01 of
the Servicing Agreement, proceed to protect and enforce its rights and the
rights of the Holders under this Agreement or any other Transaction Document
by suit, action or proceeding (including any suit, action or proceeding on
behalf of the Holders against any third party) in equity or at law or
otherwise, whether for the specific performance of any covenant or agreement
contained in this Agreement or any other Transaction
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Document or in aid of the execution of any power granted in this Agreement or
any other Transaction Document or for the enforcement of any other legal,
equitable or other remedy as the Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Trustee or the
Holders. In furtherance of and without limiting the generality of subsection
8.01(d), the Trustee shall have the right to obtain, before initiating any
such action, such reasonable indemnity from the Investor Certificateholders as
the Trustee may require against the costs, expenses and liabilities that may
be incurred therein or thereby. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Investor Certificates, the Subordinated Company
Interests or the Exchangeable Company Interest or the rights of any holder
thereof, or authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 8.14. Rights of Investor Certificateholders To
Direct Trustee. Investor Certificateholders evidencing more than 50% of the
Invested Amount of any Series affected by the conduct of any proceeding or the
exercise of any right conferred on the Trustee shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that nothing in any Pooling and Servicing
Agreement shall impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with such direction of the
Investor Certificateholders; provided further in furtherance and without
limiting the generality of subsection 8.01(d), the Trustee shall have the
right to obtain, before acting in accordance with any such direction of the
Investor Certificateholders, such reasonable indemnity from the Investor
Certificateholders as the Trustee may require against the costs, expenses and
liabilities that may be incurred in so acting.
SECTION 8.15. Representations and Warranties of
Trustee. The Trustee represents and warrants that:
(a) the Trustee is a banking corporation organized, existing
and in good standing under the laws of the State of New York and is duly
authorized to exercise trust powers under applicable law;
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(b) the Trustee has the power and authority to enter into
this Agreement and any Supplement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement
and any Supplement; and
(c) each Pooling and Servicing Agreement and each of the
Transaction Documents executed by it have been duly executed and
delivered by the Trustee and, in the case of all such Transaction
Documents, are legal, valid and binding obligations of the Trustee,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights generally and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity).
SECTION 8.16. Maintenance of Office or Agency. The Trustee
will maintain at its expense in the Borough of Manhattan, The City of New
York, an office or offices or agency or agencies where notices and demands to
or upon the Trustee in respect of the Investor Certificates or any other
Interests and the Pooling and Servicing Agreements may be served. The Trustee
will give prompt written notice to the Company, the Servicer and the Holders
of any change in the location of the Certificate Register, the Exchange
Register, the Subordinated Interest Register or any such office or agency.
SECTION 8.17. Limitation of Liability. The Investor
Certificates are executed by the Trustee, not in its individual capacity but
solely as Trustee of the Trust, in the exercise of the powers and authority
conferred and vested in it by the Trust Agreement. Each of the undertaking and
agreements made on the part of the Trustee in the Investor Certificates is
made and intended not as a personal undertaking or agreement by the Trustee
but is made and intended for the purpose of binding only the Trust.
ARTICLE IX
Termination
SECTION 9.01. Termination of Trust. (a) The
Trust and the respective obligations and responsibilities of
the Company, the Servicer and the Trustee created hereby
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(other than the obligation of the Trustee to make payments to Holders as
hereafter set forth) shall terminate, except with respect to any such
obligations or responsibilities expressly stated to survive such termination,
on the earliest of (i) the last day of the _________ Settlement Period, (ii)
at the option of the Company, at any time when the Aggregate Invested Amount
is zero, (iii) following the occurrence of any of the Early Amortization
Events specified in Section 7.01 of this Agreement, at any time when the
Aggregate Invested Amount is zero and (iv) upon completion of distribution of
the amounts referred to in subsection 7.02(b) (the "Trust Termination Date").
(b) If on the Distribution Date in the month immediately
preceding the month in which the Trust Termination Date occurs (after giving
effect to all transfers, withdrawals, deposits and drawings to occur on such
date and the payment of principal on any Series of Investor Certificates to be
made on the related Distribution Date pursuant to Article III) the Invested
Amount of any Series would be greater than zero (as certified in writing by
the Servicer), the Trustee, at the written direction of the Servicer, shall
make reasonable efforts to sell within 30 days of such Distribution Date all
of the Receivables and other Trust Assets. The proceeds of such sale shall be
treated as Collections on the Receivables and shall be allocated in accordance
with Article III. During such 30-day period, the Servicer shall continue to
collect Collections on the Receivables and allocate Collections in accordance
with the provisions of Article III. The reasonable costs and expenses incurred
by the Trustee in such sale shall be reimbursable to the Trustee as provided
in Section 8.05.
SECTION 9.02. Optional Purchase and Final Termination Date
of Investor Certificates of Any Series. (a) On any Distribution Date during
the Amortization Period with respect to any Series on which the Invested
Amount (or such other amount as may be set forth in the related Supplement) of
such Series is reduced to an amount equal to or less than the Optional
Repurchase Percentage of the Initial Invested Amount (or such other amount as
may be set forth in the related Supplement) for such Series as of the day
preceding the beginning of such Amortization Period, the Company shall have
the option to repurchase the entire Investor Certificateholders' Interest of
such Series, at a purchase price equal to (i) the outstanding Invested Amount
of the Investor Certificates of such Series plus (ii) accrued and unpaid
interest through such Distribution Date (after giving effect to any payment of
principal and
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monthly interest on such date of purchase) plus (iii) all other amounts
payable to all Investor Certificateholders of such Series under the related
Supplement (such purchase price, the "Clean-Up Call Repurchase Price"). The
amount of the Clean-Up Call Repurchase Price will be deposited into the
Collection Account for credit to the Series Collection Subaccount for such
Series on such Distribution Date in immediately available funds and will be
passed through in full to the applicable Investor Certificateholders.
Following any such repurchase, such Investor Certificateholders' Interest in
the Receivables and the other Trust Assets shall terminate and such interest
therein will be allocated to the Exchangeable Company Interest and such
Investor Certificateholders will have no further rights with respect thereto.
In the event that the Company fails for any reason to deposit the Clean-Up
Call Repurchase Price for such Receivables, the Investor Certificateholders'
Interest in the Receivables and the other Trust Assets will continue and
monthly payments will continue to be made to the Investor Certificateholders.
(b) The amount deposited pursuant to subsection 9.02(a)
shall be paid to the Investor Certificateholders of the related Series
pursuant to Article III on the Distribution Date following the date of such
deposit. All Investor Certificates of a Series which are purchased by the
Company pursuant to subsection 9.02(a) shall be delivered by the Company upon
such purchase to, and be canceled by (in accordance with the written
directions of the Company), the Transfer Agent and Registrar and be disposed
of in a manner satisfactory to the Trustee and the Company.
(c) All principal or interest with respect to any Series of
Investor Certificates shall be due and payable no later than the Series
Termination Date with respect to such Series. Unless otherwise provided in a
Supplement, in the event that the Invested Amount of any Series of Investor
Certificates is greater than zero on its Series Termination Date (after giving
effect to all transfers, withdrawals, deposits and drawings to occur on such
date and the payment of principal to be made on such Series on such date), the
Trustee will sell or cause to be sold, in accordance with the directions of
Investor Certificateholders representing more than 50% of the Invested Amount
of such Series (upon which the Trustee may conclusively rely) and pay the
proceeds to all Investor Certificateholders of such Series pro rata (except
that unless expressly provided to the contrary in the related Supplement, no
payment shall be made to Investor Certificateholders of any Class of any
Series
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that is by its terms subordinated to any other Class until such senior Class
of Investor Certificates have been paid in full) in final payment of all
principal of and accrued interest on such Series of Investor Certificates, an
amount of Receivables or interests in Receivables up to the Invested Amount of
such Series at the close of business on such date; provided, however, in
furtherance and without limiting the generality of subsection 8.01(d), the
Trustee shall have the right to obtain, before acting in accordance with any
such direction of the Investor Certificateholders, such reasonable indemnity
from the Investor Certificateholders as the Trustee may require against the
costs, expenses and liabilities that may be incurred in so acting. Absent such
direction from Investor Certificateholders representing more than 50% of the
Invested Amount of such Series or absent such reasonable indemnity as the
Trustee may require in connection with such direction, the Trustee shall
continue to hold the Trust Assets in respect of such Series in accordance with
the terms of the Pooling and Servicing Agreements until the Trust Termination
Date (or until Investor Certificateholders representing more than 50% of the
Invested Amount of such Series shall otherwise direct the Trustee); provided
that the terms of this Agreement, the related Supplement and the Servicing
Agreement shall be deemed to remain in full force and effect, except that no
additional Receivables shall be allocated with respect to such Series. The
reasonable costs and expenses incurred by the Trustee in such sale shall be
reimbursable to the Trustee as provided in Section 8.05. Any proceeds of such
sale in excess of such principal and interest paid shall be paid to the holder
of the Exchangeable Company Interest, unless and to the extent otherwise
specified in any applicable Supplement. Upon such Series Termination Date with
respect to the applicable Series, final payment of all amounts allocable to
any Investor Certificates of such Series shall be made in the manner provided
in this Section 9.02.
SECTION 9.03. Final Payment with Respect to Any Series. (a)
Written notice of any termination, specifying the Distribution Date upon which
the Investor Certificateholders of any Series may surrender their Investor
Certificates for payment of the final distribution with respect to such series
and cancelation, shall be given (subject to at least 30 days' prior written
notice from the Servicer to the Trustee containing all information required
for the Trustee's notice or such shorter period as is acceptable to the
Trustee) by the Trustee to Investor Certificateholders of such Series mailed
not later than the fifth day of the month of such final distribution
specifying
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(i) the Distribution Date upon which final payment of the Investor
Certificates will be made upon presentation and surrender of Investor
Certificates at the office or offices therein designated, (ii) the amount of
any such final payment and (iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Investor Certificates at the office or
offices therein specified. The Servicer's notice to the Trustee in accordance
with the preceding sentence shall be accompanied by an Officer's Certificate
setting forth the information specified in Section 4.04 of the Servicing
Agreement covering the period during the then current calendar year through
the date of such notice. The Trustee shall give such notice to the Transfer
Agent and Registrar and the Paying Agent at the time such notice is given to
such Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to
subsection 9.01(a) or the occurrence of the Series Termination Date with
respect to any Series pursuant to Section 9.02, all funds then on deposit in
the Collection Account (but only to the extent necessary to pay all
outstanding and unpaid amounts to Holders) shall continue to be held in trust
for the benefit of the Holders and the Paying Agent or the Trustee shall pay
such funds to the Investor Certificateholders upon surrender of their Investor
Certificates in accordance with the terms hereof. Any Investor Certificate not
surrendered on the date specified in subsection 9.03(a)(i) shall cease to
accrue any interest provided for such Investor Certificate from and after such
date. In the event that all of the Investor Certificateholders shall not
surrender their Investor Certificates for cancelation within six months after
the date specified in the above-mentioned written notice, the Trustee shall
give a second written notice to the remaining Investor Certificateholders of
such Series to surrender their Investor Certificates for cancelation and
receive the final distribution with respect thereto. If within one year after
the second notice all the Investor Certificates of such Series shall not have
been surrendered for cancelation, the Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Investor Certificateholders of such Series concerning surrender of their
Investor Certificates, and the cost thereof shall be paid out of the funds in
the Collection Account held for the benefit of such Investor
Certificateholders. The Trustee and the Paying Agent shall pay to the Company
upon request any monies held by them for the payment of principal or interest
that remains unclaimed
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for two years and neither the Trustee nor the Paying Agent shall be liable to
any Investor Certificateholder for such payment to the Company upon its
request. After payment to the Company, Holders entitled to the money must look
to the Company for payment as general creditors unless an applicable abandoned
property law designates another Person.
(c) All Investor Certificates surrendered for payment of the
final distribution with respect to such Investor Certificates and cancelation
shall be canceled by the Transfer Agent and Registrar and be disposed of in a
customary manner satisfactory to the Trustee.
SECTION 9.04. Company's Termination Rights. Upon
the termination of the Trust pursuant to Section 9.01 and
payment to the Trustee (in its capacity as such and/or in
its capacity as Successor Servicer) of all amounts owed to
it under any Pooling and Servicing Agreement, the Trustee
shall assign and convey to the Company (without recourse,
representation or warranty) in exchange for the Exchangeable
Company Interest all right, title and interest of the Trust
in the Trust Assets, whether then existing or thereafter
created, and all proceeds thereof except for amounts held by
the Trustee pursuant to subsection 9.03(b). The Trustee
shall execute and deliver such instruments of transfer and
assignment, in each case without recourse, representation or
warranty, as shall be reasonably requested by the Company to
vest in the Company all right, title and interest which the
Trust had in the Trust Assets.
ARTICLE X
Miscellaneous Provisions
SECTION 10.01. Amendment. (a) This Agreement, the Servicing
Agreement and each Supplement in respect of an Outstanding Series
(collectively, the "Pooling and Servicing Agreements") may be amended in
writing from time to time by the Servicer, the Company and the Trustee,
without the consent of any Holder, 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 hereof to
change in any manner or eliminate any of the provisions with respect to
matters or questions raised under any Pooling and Servicing Agreement 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
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Pooling Agreement
the Trustee may conclusively rely, have a material adverse effect on the
interests of the Investor 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 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 which affects the
Trustee's rights, duties or immunities under any Pooling and Servicing
Agreement or otherwise.
(b) Any Pooling and Servicing Agreement and, to the extent
provided in any Pooling and Servicing Agreement, any other agreement relating
to the Receivables may also be amended (other than in the circumstances
referred to in the preceding paragraph (a)) in writing from time to time by
the Servicer, the Company and the Trustee with the consent of Investor
Certificateholders evidencing more than 50% of the Invested Amount of any
Series adversely affected in any material respect by the amendment (or, if any
such Series shall have more than one Class of Investor Certificates adversely
affected in any material respect by the amendment, more than 50% of the
Invested Amount of each such Class) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of such
Pooling and Servicing Agreement or such other agreement or of modifying in any
manner the rights of holders of any Series then issued and outstanding;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, distributions which are required to be made
on any Investor Certificate of such Series without the consent of such
Investor Certificateholder of such Series; (ii) change the definition of or
the manner of calculating the interest of any Investor Certificateholder of
such Series without the consent of such Investor Certificateholder; or (iii)
reduce the aforesaid percentage of the Invested Amount of any adversely
affected Series or Class the holders of which are required to consent to any
such amendment without the consent of all Investor Certificateholders of each
Series adversely affected in any material respect.
(c) Notwithstanding anything in this Section 10.01 to the
contrary, the Supplement with respect to any Series may be amended on the
terms and with the procedures provided in such Supplement.
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(d) Promptly after the execution of any such amendment or
consent, the Trustee shall furnish written notification of the substance of
such amendment to each Investor Certificateholder of each Outstanding Series
(or with respect to an amendment of a Supplement, to each Investor
Certificateholder of the applicable Series), and the Servicer shall furnish
written notification of the substance of such amendment to each Rating Agency.
No such amendment (including without limitation, the amendment of any
Supplement notwithstanding anything to the contrary contained in any
Supplement) shall be effective until the Rating Agency Condition has been
satisfied.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 10.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Investor
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
(f) In executing or accepting any amendment pursuant to this
Section 10.01, the Trustee shall, upon request, be entitled to receive and
rely upon (i) an Opinion of Counsel stating that such amendment is authorized
pursuant to a specific provision of a Pooling and Servicing Agreement and
complies with such provision, (ii) a certificate from a Responsible Officer of
the Company stating that such (A) amendment shall not adversely affect the
interests of the holders of any outstanding Investor Certificates in any
material respect except for holders of the Series whose consent to such
amendment has been obtained in accordance with clause (b) of this Section
10.01 and (B) all conditions precedent to the execution and delivery of such
amendment shall have been satisfied in full and (iii) a Tax Opinion.
SECTION 10.02. Protection of Right, Title and Interest to
Trust. The Company shall cause all financing statements and continuation
statements and any other necessary documents covering the Holders' and the
Trustee's right, title and interest to the Trust and the Trust Assets to be
promptly recorded, registered and filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be required
by law fully to preserve and protect the right, title and interest of the
Trustee hereunder to all property comprising the Trust. The Company shall
deliver to the Trustee copies of, or filing receipts for, any document
recorded, registered or filed as
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provided above, as soon as available following such recording, registration or
filing. In the event that the Company fails to file such financing or
continuation statements and the Trustee has received an opinion of counsel, at
the expense of the Company, that such filing is necessary to preserve and to
protect the Trustee's right, title and interest in any Trust Asset then the
Trustee shall have the right to cause to be filed the same on behalf of the
Company and the Trustee shall be reimbursed and indemnified by the Company for
making such filing.
SECTION 10.03. Limitation on Rights of Holders. (a) The
death or incapacity of any Holder shall not operate to terminate this
Agreement or the Trust, nor shall such death or incapacity entitle such
Holders' legal representatives or heirs to claim an accounting or to take any
action or commence any proceeding in any court for a partition or winding up
of the Trust, nor otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
(b) Except with respect to the Investor Certificateholders
as expressly provided in any Pooling and Servicing Agreement, no Holder shall
have any right to vote or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto. Nor shall
any Holder be under any liability to any third person by reason of any action
taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Holder shall have any right by virtue of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee written request to institute
such action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for 60 days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to initiate any such
action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Holder with every other Holder and the Trustee,
that no one or more Holder shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of the Pooling
and Servicing Agreements to affect, disturb or prejudice the rights of any
other of the Interests, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to
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enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all Holders. For the
protection and enforcement of the provisions of this Section 10.03, each and
every Holder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
(d) By their acceptance of Interests pursuant to this
Agreement and the applicable Supplement, the Holders agree to the provisions
of this Section 10.03.
SECTION 10.04. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 10.05. Notices. All notices, requests and demands to
or upon the respective parties hereto to be effective shall be in writing
(including 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, addressed as follows in the case of the
Company, the Servicer and the Trustee, or to such other address as may be
hereafter notified by the respective parties hereto:
The Company:
AAM Receivables Corp.
1840 Holbrook Avenue; Suite 2A
Detroit, MI 48212
Attention of: Mark Umlauf
Telecopy: (313) 873-5472
with a copy to the Servicer
The Servicer:
American Axle & Manufacturing, Inc.
1840 Holbrook Avenue
Detroit, MI 48212
Attention of: Gary Witosky
Telecopy: (313) 974-2229
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The Trustee:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention of: Structured Finance Services
Telecopy: (212) 946-3240
Any notice required or permitted to be mailed to a Holder shall be given by
first-class mail, postage prepaid, at the address of such Holder as shown in
the Certificate Register, the Exchange Register or the Subordinated Interest
Register, as the case may be. Any notice so mailed within the time prescribed
in any Pooling and Servicing Agreement shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice.
SECTION 10.06. Severability of Provisions. If
any one or more of the covenants, agreements, provisions or
terms of any Pooling and Servicing Agreement shall for any
reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or
terms of such Pooling and Servicing Agreement and shall in
no way affect the validity or enforceability of the other
provisions of any Pooling and Servicing Agreement or of the
Investor Certificates or rights of the Holders.
SECTION 10.07. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 5.03 of the Servicing
Agreement, no Pooling and Servicing Agreement may be assigned by the Company
or the Servicer without the prior written consent of the Trustee acting on
behalf of the holders of 66-2/3% of the Invested Amount of each Outstanding
Series and without the Rating Agency Condition having been satisfied with
respect to such assignment.
SECTION 10.08. Investor Certificates Nonassessable and Fully
Paid. It is the intention of the parties to each Pooling and Servicing
Agreement that the Investor Certificateholders shall not be personally liable
for obligations of the Trust, that the interests in the Trust represented by
the Investor Certificates shall be nonassessable for any losses or expenses of
the Trust or for any reason whatsoever and that Investor Certificates upon
authentication thereof by the Trustee pursuant to Section 5.02 are and shall
be deemed fully paid.
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Pooling Agreement
SECTION 10.09. Further Assurances. The Company and the
Servicer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by
the Trustee more fully to effect the purposes of each Pooling and Servicing
Agreement, including, without limitation, the execution of any financing
statements or continuation statements relating to the Receivables for filing
under the provisions of the UCC of any applicable jurisdiction.
SECTION 10.10. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee or the
Investor Certificateholders, 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 10.11. Counterparts. This Agreement may be executed
in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
SECTION 10.12. Third-Party Beneficiaries. This Agreement
will inure to the benefit of and be binding upon the parties hereto, the
Holders and their respective successors and permitted assigns. Except as
otherwise provided in this Section 10.12, no other Person will have any right
or obligation hereunder.
SECTION 10.13. Actions by Investor Certificateholders. (a)
Wherever in any Pooling and Servicing Agreement a provision is made that an
action may be taken or a notice, demand or instruction given by Investor
Certificateholders, such action, notice or instruction may be taken or given
by any Investor Certificateholders of any Series, unless such provision
requires a specific percentage of Investor Certificateholders of a certain
Series or all Series.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by an Investor Certificateholder shall bind such
Investor Certificateholder and every subsequent holder of such Investor
Certificate issued upon the registration of
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Pooling Agreement
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or omitted to be done by the Trustee, the Company, or the
Servicer in reliance thereon, whether or not notation of such action is made
upon such Investor Certificate.
SECTION 10.14. Merger and Integration. Except as
specifically stated otherwise herein, this Agreement and the Servicing
Agreement set forth the entire understanding of the parties relating to the
subject matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement and the Servicing Agreement. This Agreement and
the Servicing Agreement may not be modified, amended, waived, or supplemented
except as provided herein.
SECTION 10.15. Headings. The headings herein are
for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision
hereof.
SECTION 10.16. Construction of Agreement. (a) The Company
hereby grants to the Trustee, for the benefit of the Holders, a security
interest in all of the Company's right, title and interest in, to and under
the Receivables and the other Trust Assets now existing and hereafter created,
all monies due or to become due and all amounts received with respect thereto
and all "proceeds" thereof (including Recoveries), to secure all of the
Company's and the Servicer's obligations hereunder, including, without
limitation, the Company's obligation to sell or transfer Receivables hereafter
created to the Trust.
(b) This Agreement shall constitute a security agreement
under applicable law.
SECTION 10.17. No Setoff. Except as expressly provided in
this Agreement or any other Transaction Document, the Trustee agrees that it
shall have no right of setoff or banker's lien against, and no right to
otherwise deduct from, any funds held in the Collection Account for any amount
owed to it by the Company, the Servicer or any Holder.
SECTION 10.18. No Bankruptcy Petition. Each of the Trustee
and the Servicer hereby covenants and agrees that, prior to the date which is
one year and one day after the date of the end of the Amortization Period with
respect to all Outstanding Series, it will not institute against, or join any
other Person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or
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liquidation proceedings, or other proceedings under any Federal or state
bankruptcy or similar law.
SECTION 10.19. Limitation of Liability. It is expressly
understood and agreed by the parties hereto that (a) each Pooling and
Servicing 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, (b) except with respect to
Section 8.15 hereof the representations, undertakings and agreements herein
made on the part of the Trust 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, (c) nothing herein
contained shall be construed as creating any liability on the Trustee,
individually or personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being expressly waived
by the parties who are signatories to this Agreement and by any Person
claiming by, through or under such parties; provided, however, the Trustee
shall be liable in its individual capacity for its own wilful misconduct or
gross negligence and for any tax assessed against the Trustee based on or
measured by any fees, commission or compensation received by it for acting as
Trustee and (d) 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 any Pooling and Servicing Agreement;
provided further that the foregoing clauses (a) through (d) shall survive the
resignation or removal of the Trustee.
The Company hereby agrees to indemnify and hold harmless the
Trustee and the Trust (for the benefit of the Holders) (each, an "Indemnified
Person") from and against any loss, liability, expense, damage or injury
suffered or sustained by reason of 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 to which it is a party, including but
not limited to any judgment, award, settlement, reasonable attorneys' fees and
other reasonable costs or expenses incurred in connection with the defense of
any actual or threatened action, proceeding or claim, except to the extent
such loss, liability, expense, damage or injury resulted from the gross
negligence, bad faith or wilful misconduct of an Indemnified Person or
resulted from the performance of any Receivable, market fluctuations or other
market or investment risk not attributable to acts or omissions or alleged
acts or
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Pooling Agreement
omissions of the Company provided, however, that any payments to be made by
the Company pursuant to this subsection shall be Company Subordinated
Obligations.
SECTION 10.20. Certain Information. The Servicer and the
Company shall promptly provide to the Trustee such information in computer
tape, hard copy or other form regarding the Receivables as the Trustee may
reasonably determine to be necessary to perform its obligations here under and
under the Servicing Agreement.
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Pooling Agreement
IN WITNESS WHEREOF, the Company, the Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
AAM RECEIVABLES CORP.,
by /s/ Patrick S. Lancaster
-------------------------
Name: Patrick S. Lancaster
Title: Secretary
AMERICAN AXLE & MANUFACTURING,
INC.,
as Servicer,
by /s/ Gary J. Witosky
------------------------
Name: Gary J. Witosky
Title: Chief Financial
Officer
THE CHASE MANHATTAN BANK, not
in its individual capacity but
solely as Trustee,
by /s/ Marcus Gustafson
-------------------------
Name: Marcus Gustafson
Title: Vice President
Pooling Agreement
EXHIBIT A to the
POOLING AGREEMENT
[FORM OF LOCKBOX AGREEMENT]
, 1997
[Name and address of Lockbox Bank]
Attention:
Ladies and Gentlemen:
AAM Receivables Corp., a Delaware corporation (the
"Company"), has agreed to purchase certain receivables (the "Receivables")
from American Axle & Manufacturing, Inc. ("AAMI, in its capacity as seller,
the "Seller", and in its capacity as servicer pursuant to the Transaction
Documents, the "Servicer") pursuant to the Receivables Sale Agreement, dated
as of October 29, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Receivables Sale Agreement"), between AAMI and the Company.
The Company has in turn assigned the Receivables to a master trust (the
"Master Trust") pursuant to a Pooling Agreement, dated as of October 29, 1997
(as amended, supplemented or otherwise modified from time to time, the
"Pooling Agreement"), among the Company, the Servicer and The Chase Manhattan
Bank, a New York banking corporation, as trustee (the "Trustee"). The
Receivables are serviced pursuant to the terms of a Servicing Agreement, dated
as of October 29, 1997 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Servicing Agreement"; and, collectively with
the Pooling Agreement, the "Pooling and Servicing Agreements") among the
Company, the Servicer and the Trustee. Capitalized terms used herein but not
defined herein shall have the meanings assigned to such terms in the Pooling
Agreement.
Pursuant to the terms of the Pooling and Servicing
Agreements and except as otherwise provided therein, (i) the Servicer has
agreed to instruct all Obligors under the Receivables to make all payments in
respect of such Receivables to a blocked deposit account (each, a "Lockbox
Account") designated by the Servicer to such Obligor and (ii) the Company has
agreed to grant a security interest in its right, title and interest in each
Lockbox Account and all funds and other evidences of payment held therein to
the Trustee. Furthermore, the Company, the Servicer and the Trustee have
agreed, pursuant to the Pooling and Servicing Agreements, to enter into an
agreement with each bank
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Pooling Agreement
maintaining a Lockbox Account and hereby request that [name of Lockbox Bank]
(the "Lockbox Bank") act as, and the Lockbox Bank hereby agrees to act as, a
lockbox deposit bank for the Company with respect to the Lockbox Account. This
Letter Agreement defines certain rights and obligations with respect to the
appointment of the Lockbox Bank.
Accordingly, the Company, the Servicer, the Trustee and the
Lockbox Bank agree as follows:
Reference is made to the Lockbox Account (Account No. ),
including box number thereunder (collectively, the "Specified Account"),
maintained with you by the Servicer. The Servicer hereby transfers the
Specified Account to the Company and hereafter the Specified Account shall be
in the name of the Company and maintained by the Lockbox Bank for the benefit
of the Company and the Trustee, as set forth herein. All funds and other
evidences of payment received by the Lockbox Bank in its capacity as Lockbox
Bank shall be deposited in the Specified Account. Such payments shall not be
commingled with other funds. All funds and other evidences of payment at any
time on deposit in the Specified Account shall be held by the Lockbox Bank for
application strictly in accordance with the terms of this Letter Agreement.
The Lockbox Bank agrees to give the Trustee, the Company and the Servicer
prompt notice if the Specified Account shall become subject to any writ,
judgment, warrant of attachment, execution or similar process.
The Trustee shall have sole and exclusive dominion over and
control of the Specified Account and all Collections and other property from
time to time deposited therein, and shall have the sole right of withdrawal
from the Specified Account. Each of the Company and the Servicer acknowledges
and agrees that it shall not have any dominion over or control of the
Specified Account or any Collections or other property from time to time
deposited therein including any right to withdraw or utilize any funds or
other evidences of payment on deposit in the Specified Account, other than the
right to authorize transfers to the Collection Account as set forth herein and
pursuant to the terms of the Pooling and Servicing Agreements. The Lockbox
Bank shall automatically, by 1:00 p.m., New York City time, at least as often
as once each day that is a business day for the Lockbox Bank and for the
Trustee, transfer, by means of the Automated Clearing House System, all
available funds on deposit in the Specified Account, including all funds
transferred from Obligors on or before the end of the preceding day, along
with, subject to the next succeeding
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Pooling Agreement
sentence, all remittance advisements and payment invoices on deposit therein, to
the Collection Account. The Lockbox Bank acknowledges that, until it receives
instructions from the Trustee to the contrary, the Lockbox Bank shall return to
the Company, upon the Company's reasonable request therefor, any remittance
advisements and payment invoices deposited into the Specified Account.
Deposited checks with respect to the Specified Account
returned to the Lockbox Bank for any reason will be charged against the
Specified Account. Nothing contained in the previous sentence shall be
construed to prejudice other rights of the Lockbox Bank, which rights include
the right of recourse against the Company for any overdrafts in the Specified
Account.
The Trustee is authorized to receive mail delivered to the
Lockbox Bank with respect to the Specified Account and the Company has filed a
form of standing delivery order with the United States Postal Service
authorizing the Trustee to receive mail delivered to the Lockbox Bank with
respect to the Specified Account.
The Lockbox Bank shall also furnish the Trustee with
statements, in the form and manner typical for the Lockbox Bank, of amounts of
deposits in, and amounts transferred to the Collection Account from, the
Specified Account pursuant to any reasonable request of the Trustee but in any
event not less frequently than monthly and such other information relating to
the Specified Account at such times as shall be reasonably requested by the
Trustee.
For purposes of this Letter Agreement, any officer of the
Trustee shall be authorized to act, and to give instructions and notice, on
behalf of the Trustee hereunder.
The fees for the services of the Lockbox Bank shall be
mutually agreed upon between the Company and the Lockbox Bank and paid by the
Company. Neither the Trustee nor any investor in the Master Trust shall have
any responsibility or liability for the payment of any such fee.
The Lockbox Bank may perform any of its duties hereunder by
or through its officers, employees or agents and shall be entitled to rely
upon the advice of counsel as to its duties. The Lockbox Bank shall not be
liable to the Trustee, the Servicer or the Company for any action taken or
omitted to be taken by it in good faith, nor shall the Lockbox Bank be
responsible to the Trustee, the Servicer or the Company for the consequences
of any oversight or error of judgment or be answerable to the Trustee for the
same, unless such action, omission, oversight or error
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Pooling Agreement
of judgment shall happen through the Lockbox Bank's negligence or willful
misconduct.
The Lockbox Bank hereby represents and warrants that (a) it
is a banking corporation duly organized, validly existing and in good standing
under the laws of [ ] and has full corporate power and authority under such
laws to execute, deliver and perform its obligations under this Agreement and
(b) the execution, delivery and performance of this Agreement by the Lockbox
Bank have been duly and effectively authorized by all necessary corporate
action and this Agreement has been duly executed and delivered by the Lockbox
Bank and constitutes a valid and binding obligation of the Lockbox Bank
enforceable in accordance with its terms.
The Lockbox Bank may resign at any time as Lockbox Bank
hereunder by delivery to the Trustee and the Company of written notice of
resignation not less than 30 days prior to the effective date of such
resignation. The Company may, with the written consent of the Trustee, and, if
the Company shall refuse any demand by the Trustee to do so in the event (i)
an Early Amortization Period shall have occurred and be continuing or (ii)
there has been a failure by the Lockbox Bank to perform any of its material
obligations hereunder and such failure could adversely affect the Trustee's
interest in any Receivable or the Trustee's rights, or ability to exercise any
remedies, under this Letter Agreement or the Pooling and Servicing Agreements,
the Trustee may close the Specified Account at any time by delivery of notice
to the Lockbox Bank and the Company at the addresses appearing below. This
Letter Agreement shall terminate upon receipt of such notice of closing, or
delivery of such notice of resignation, except that the Lockbox Bank shall
immediately transfer to the Collection Account, or any other account
designated by the Trustee all available funds or, subject to the Company's
reasonable request to retain such items, any remittance advisements or payment
invoices, if any, then on deposit in, or otherwise to the credit of, the
Specified Account and deliver any available funds or such remittance
advisements or payment invoices relating to the Receivables received by the
Lockbox Bank after such notice directly to the Collection Account or any other
account designated by the Trustee.
All notices and communications hereunder shall be in writing
(except where telephonic instructions or notices are authorized herein) and
shall be deemed to have been
5
Pooling Agreement
received and shall be effective on the day on which delivered (including
delivery by telex):
(i) in the case of the Trustee, to it at:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10011
Attention: Structured Finance Services
Telecopy No.: (212) 946-3240
(ii) in the case of the Lockbox Bank, to it at:
Attention:
Telecopy No.:
(iii) in the case of the Company, to it at:
AAM Receivables Corp.
1840 Holbrook Avenue, Suite 2A
Detroit, MI 48212
Attention: Mark Umlauf
Telecopy No.: (313) 873-5472
(iv) in the case of the Servicer, to it at:
American Axle & Manufacturing, Inc.
1840 Holbrook Avenue
Detroit, MI 48212
Attention: Gary Witosky
Telecopy No.: (313) 974-2229
The Lockbox Bank shall not assign or transfer any of its
rights or obligations hereunder (other than to the Trustee) without the prior
written consent of the Trustee. This Letter Agreement may be amended only by a
written instrument executed by the Company, the Servicer, the Trustee and the
Lockbox Bank, acting by their representative officers thereunto duly
authorized. Except with respect to the amount of its fees payable hereunder,
the Lockbox Bank hereby unconditionally and irrevocably waives (so long as the
Pooling and Servicing Agreements are in effect) any rights of setoff or
banker's lien against, or to otherwise deduct from, any funds or other
evidences of payment held in
6
Pooling Agreement
any Specified Account for any indebtedness or other claim owed by the Company or
the Servicer to the Lockbox Bank.
THIS LETTER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT
THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST OR REMEDIES HEREUNDER IN
RESPECT OF ANY RECEIVABLE MAY BE GOVERNED BY THE LAW OF A JURISDICTION OTHER
THAN NEW YORK.
This Letter Agreement (i) shall inure to the benefit of, and
be binding upon, the Company, the Servicer, the Trustee, the Lockbox Bank and
their respective successors and assigns and (ii) may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Letter Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Letter Agreement.
7
Pooling Agreement
IN WITNESS WHEREOF, the parties hereto have caused this
Letter Agreement to be executed by their duly authorized officers as of the
date first above written.
Very truly yours,
AAM RECEIVABLES CORP.,
by
--------------------------
Title:
AMERICAN AXLE & MANUFACTURING,
INC., as Servicer,
by
-------------------------
Title:
Agreed to and accepted:
[NAME OF LOCKBOX BANK],
as Lockbox Bank
by
--------------------------
Title:
THE CHASE MANHATTAN BANK,
as Trustee
by
--------------------------
Title:
Pooling Agreement
Exhibit B to the
Pooling Agreement
FORM OF ANNUAL OPINION OF COUNSEL
PROVISIONS TO BE INCLUDED
IN ANNUAL OPINION OF COUNSEL DELIVERED PURSUANT TO
SECTION 2.07(b) OF THE POOLING AGREEMENT ON JANUARY 31,
OF EACH YEAR COMMENCING WITH JANUARY , 1999
The opinion set forth below, which is to be delivered
pursuant to Section 2.07(b) of the Pooling Agreement, dated as of October 29,
1997, among AAM Receivables Corp., American Axle & Manufacturing, Inc.
("AAMI"), as Servicer, and The Chase Manhattan Bank, as Trustee, may be
subject to certain qualifications, assumptions, limitations and exceptions
taken or made in the opinions of counsel delivered on the Initial Issuance
Date with respect to similar matters. In addition, the opinion may contain the
following qualification as applicable:
With your permission, we have based our opinions set forth in paragraphs
1, 2 and 3 below as they relate to the laws of [states in which the
opiner does not have an office] (each a "UCC State") solely upon our
review of the relevant provisions of Sections 9-102, 9-103, 9-105, 9-106,
9-302, 9-304, 9-306, 9-401, 9-402 and 9-403 [and such additional Sections
as the opiner may determine] of the Uniform Commercial Code as enacted in
each UCC State as set forth in [the CCH Secured Transactions Guide or a
similar compilation]. We have assumed such provisions are presently in
effect and have not been modified in any respect by any other statute,
regulation or court decision with respect to the laws of each such UCC
State or otherwise. We call to your attention that we are not licensed to
practice in any of the UCC States nor do we profess any expertise with
respect to the laws thereof.
1. With respect to the transfer by AAMI, as Seller (the
"Seller") to AAM Receivables Corp. of all of the Seller's right, title and
interest in, to and under the Receivables, Related Property, Collections and
all rights (including rescission, replevin or reclamation) relating to any
Receivable originated by the Seller or arising therefrom (collectively, the
"Seller Property") pursuant to the terms of the Receivables Sale Agreement,
dated as of October 29, 1997 (as amended, supplemented or otherwise modified
thereafter, the "Receivables Sale Agreement"), between AAM Receivables Corp.
and the Seller, no filing or other action, other than such filing or action
described in the [opinions of counsel delivered on the Initial Issuance Date]
[or the opinions delivered on January 31 of the prior year pursuant to Section
2.07(b) of the Pooling Agreement] with respect to
2
Pooling Agreement
similar matters, is necessary from the date of such opinions through 90 days
into the following calendar year to continue the perfected and priority status
of the interest of AAM Receivables Corp. in such Seller Property.
2. With respect to the transfer by AAM Receivables Corp. to
the Trust of all of AAM Receivables Corp.'s right, title and interest in, to
and under the Receivables and the other Trust Assets (as defined in the
Pooling Agreement) (collectively, the "Trust Property") pursuant to the terms
of the Pooling Agreement, no filing or other action, other than such filing or
action described in the [opinions of counsel delivered on the initial Issuance
Date] [or the opinions delivered on January 31 of the prior year pursuant to
Section 2.07(b) of the Pooling Agreement] with respect to similar matters is
necessary from the date of such opinions through 90 days into the following
calendar year to continue the perfected and priority status of the interest of
the Trust in such Trust Property.
3. Set forth on Schedule __ to this opinion is a list of all
UCC Financing Statements which have been filed by the Seller relating to the
Seller Property and by AAM Receivables Corp. relating to the Trust Property
and the earliest and latest date under the applicable UCC on which
continuation statements may be filed for each such financing statement. 1/
--------
1/ In the event that the earliest date for filing any continuation
statement occurs prior to January 30 of the following year, such opinion shall
also be delivered to the Seller, AAM Receivables Corp. and the Servicer with a
notice stating that such continuation statements shall be filed on such
earliest date.
Pooling Agreement
Schedule 1 to the
POOLING AGREEMENT
Receivables
American Axle & Manufacturing, Inc. aged trial
balance as of October 24, 1997, on computer diskette.
Pooling Agreement
SCHEDULE 2 to the
POOLING AGREEMENT
Identification of Trust Accounts
The following accounts have been established by and at the
Chase Manhattan Bank.
Name Number
------ -------
Collection Account 507-831454
Company Collection Subaccount 507-830555
Pooling Agreement
SCHEDULE 3 to the
POOLING AGREEMENT
Chief Executive Office
American Axle & Manufacturing, Inc.
World Headquarters
1840 Holbrook Avenue
Detroit, Michigan 48212
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 6/5/98 | | | | | | | None on these Dates |
| | 12/10/97 | | 16 |
| | 10/29/97 | | 1 | | 126 |
| | 10/27/97 | | 13 |
| | 10/24/97 | | 13 | | 128 |
| | 9/22/97 | | 22 |
| | 2/20/96 | | 22 |
| | 3/1/94 | | 21 |
| | 2/17/94 | | 21 |
| List all Filings |
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