EXHIBIT 10.49
EXECUTION COPY
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GENERAL CABLE CAPITAL FUNDING, INC.
GENERAL CABLE INDUSTRIES, INC.
as Master Servicer
and
THE CHASE MANHATTAN BANK
as Trustee
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SERIES 2001-VFC SUPPLEMENT
Dated as of May 9, 2001
to
MASTER POOLING AND SERVICING AGREEMENT
Dated as of May 9, 2001
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GENERAL CABLE 2001 MASTER TRUST
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions ........................................................................1
SECTION 1.2 Other Definitional Provisions .....................................................12
ARTICLE II
DESIGNATION OF CERTIFICATES; PURCHASE AND SALE
OF THE VFC CERTIFICATES
SECTION 2.1 Designation .......................................................................13
SECTION 2.2 The Series 2001-VFC Certificates ..................................................13
SECTION 2.3 Delivery ..........................................................................13
SECTION 2.4 Limitations on Transfer ...........................................................14
SECTION 2.5 [Intentionally Omitted] ...........................................................14
SECTION 2.6 Procedure for Decreasing the Invested Amount ......................................14
SECTION 2.7 Additional Invested Amounts .......................................................15
ARTICLE III
ARTICLE III OF THE POOLING AGREEMENT
SECTION 3.2. Establishment of Trust Accounts ..................................................16
SECTION 3.3. Daily Allocations ................................................................17
SECTION 3.4. Determination of Interest ........................................................18
SECTION 3.5. Determination of Series 2001-VFC Principal .......................................19
SECTION 3.6. Applications .....................................................................20
SECTION 3.7 Taxes .............................................................................23
ARTICLE IV
DISTRIBUTIONS AND REPORTS
SECTION 4.1. Distributions ....................................................................23
SECTION 4.2. Statements and Notices ...........................................................24
SECTION 4.3. Notices ..........................................................................24
ARTICLE V
ADDITIONAL EARLY AMORTIZATION EVENTS
SECTION 5.1 Additional Early Amortization Events ..............................................25
ARTICLE VI
SERVICING FEE
SECTION 6.1 Servicing Compensation ............................................................27
ARTICLE VII
COVENANTS, REPRESENTATIONS AND WARRANTIES
SECTION 7.1 Representations and Warranties of the Company and the Master Servicer .............28
SECTION 7.2 Covenants of the Company ..........................................................28
SECTION 7.3 Covenants of the Master Servicer ..................................................28
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Ratification of Pooling Agreement .................................................28
SECTION 8.2 Governing Law .....................................................................28
SECTION 8.3 Further Assurances ................................................................29
SECTION 8.4 No Waiver; Cumulative Remedies ....................................................29
SECTION 8.5 Amendments ........................................................................29
SECTION 8.6 Notices ...........................................................................29
SECTION 8.7 Counterparts ......................................................................29
ARTICLE IX
FINAL DISTRIBUTIONS
SECTION 9.1 Certain Distributions .............................................................29
EXHIBITS
Exhibit A Form of Series 2001-VFC Variable Funding Certificate
Exhibit B Form of Series 2001-VFC Subordinated Company Certificate
Exhibit C Form of Investment Letter
Exhibit D Form of Daily Report
Exhibit E Form of Monthly Settlement Statement
SERIES 2001-VFC SUPPLEMENT, dated as of May 9, 2001 (this "Supplement"),
among GENERAL CABLE CAPITAL FUNDING, INC., a Delaware corporation (the
"Company"), GENERAL CABLE INDUSTRIES, INC. ("Parent"), a Delaware corporation,
as Master Servicer (the "Master Servicer"), and The Chase Manhattan Bank, as
Trustee (the "Trustee") under the Pooling Agreement (as hereinafter defined).
W I T N E S S E T H :
WHEREAS, the parties hereto are entering into a Master Pooling and
Servicing Agreement, dated as of the date hereof (as supplemented by this
Supplement or otherwise amended or modified from time to time, the "Pooling
Agreement");
WHEREAS, the Pooling Agreement provides, among other things, that the
Company, the Master Servicer and the Trustee may at any time and from time to
time enter into supplements to the Pooling Agreement for the purpose of
authorizing the issuance on behalf of the Trust by the Company for execution and
redelivery to the Trustee for authentication of one or more Series of Investor
Certificates; and
WHEREAS, the Company, the Master Servicer and the Trustee wish to
supplement the Pooling Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. (i) Unless otherwise defined herein,
capitalized terms which are used herein shall have the meanings assigned to such
terms in Section 1.1 of the Pooling Agreement. The following words and phrases
shall have the following meanings with respect to Series 2001-VFC:
"Accrual Period" shall mean, initially, the period beginning on the
Issuance Date and ending on May 31, 2001. Thereafter the Accrual Period shall
mean each calendar month.
"Actual Monthly Additional Amounts" shall mean, for any Accrual Period,
all amounts owing to the Agent or any Purchaser under the Certificate Purchase
Agreement in respect of indemnities, reimbursement of expenses or any other
obligation (other than Monthly Interest and Fees and Principal Balance).
1
"Actual Monthly Program Fees" shall mean, on any Distribution Date, the
amount of program fees specified in the Fee Letter as accruing during the
related Accrual Period.
"Actual Monthly VFC Fees" shall mean, on any Distribution Date, the sum
of (i) the Monthly Facility Fee and (ii) the Actual Monthly Program Fees arising
during the related Accrual Period.
"Additional Interest" shall have the meaning assigned in Section 3.4(b).
"Additional Invested Amounts" shall have the meaning specified in
Section 2.7 of this Supplement.
"Adjusted Invested Amount" shall mean, on any date of determination, the
Invested Amount minus the amount on deposit in the Series 2001-VFC Principal
Collection Sub-subaccount.
"Agent" shall have the meaning specified in the preamble of the
Certificate Purchase Agreement.
"Bank Rate" shall mean the LIBO Rate or the Base Rate, as applicable,
with respect to each Bank Rate Tranche.
"Bank Rate Tranche" shall mean a portion of the Principal Balance held
by any VFC Certificateholder which is a Committed Purchaser pursuant to the
Certificate Purchase Agreement.
"Bank Rate Tranche Period" shall have the meaning specified in the
Certificate Purchase Agreement.
"Base Rate" shall mean a rate per annum equal to the corporate base
rate, prime rate or base rate of interest, as applicable, announced by the
Reference Bank from time to time, changing when and as such rate changes.
"Carrying Cost Reserve Ratio" shall mean, as of any Settlement Report
Date and continuing until (but not including) the next Settlement Report Date,
an amount (expressed as a percentage) equal to (a) 2.00 times Days Sales
Outstanding as of such day multiplied by (b) (i) 1.50 times the Interest and Fee
Accrual Rate as of such day, divided by (ii) 360.
"Certificate Owner" shall mean a VFC Certificateholder or, with respect
to any VFC Certificate held by the Agent or any Person as nominee on behalf of a
beneficial owner of such a VFC Certificate, the Person that is the beneficial
owner of the Principal Balance represented by such a VFC Certificate as
reflected on the books of such nominee.
"Certificate Purchase Agreement" shall mean the Certificate Purchase
Agreement (Series 2001-VFC), dated as of May 9, 2001 by and among General Cable
Industries, Inc., General Cable Capital Funding, Inc., Bank One, NA (Main Office
Chicago), as the Agent, and the Purchasers.
2
"Change in Control" shall mean the occurrence of any event the result of
which causes the Company not to be a direct, wholly-owned Subsidiary of General
Cable Industries, Inc.
"Committed Purchaser" shall have the meaning specified in Section 1.1 of
the Certificate Purchase Agreement.
"Commitment" shall have the meaning specified in Section 1.1 of the
Certificate Purchase Agreement, which means, in general, a commitment to
purchase a portion of the Invested Amount pursuant to the provisions of the
Certificate Purchase Agreement.
"Cost of Funds Rate Tranche" shall mean that portion of the Principal
Balance held by a Certificate Owner which is a Noncommitted Purchaser pursuant
to the Certificate Purchase Agreement.
"Daily Report" shall mean a report prepared by the Master Servicer on
each Business Day for the period specified therein, in substantially the form of
Exhibit D.
"Days Sales Outstanding" shall mean, as of any Settlement Report Date
and continuing until the next Settlement Report Date, the number of days equal
to the product of (a) 91 multiplied by (b) the amount obtained by dividing (i)
the aggregate Principal Amount of Receivables as at the last day of the
Settlement Period immediately preceding such earlier Settlement Report Date, by
(ii) the aggregate Principal Amount of Receivables generated by the Sellers and
purchased by the Company for the three Settlement Periods immediately preceding
such earlier Settlement Report Date.
"Dilution Horizon Factor" shall mean, as of any Settlement Report Date
and continuing until (but not including) the next Settlement Report Date, the
quotient (expressed as a percentage) of: (i) the aggregate Principal Amount of
Receivables which were originated by the Sellers and purchased by the Company
during the seventy-two (72) day period ending on the last day of the Settlement
Period preceding such Settlement Report Date divided by (ii) the Aggregate
Receivables Amount as of the last day of the Settlement Period preceding such
Settlement Report Date.
"Dilution Ratio" shall mean, as of the last day of each Settlement
Period, an amount (expressed as a percentage) equal to the aggregate amount of
Dilution Adjustments minus SQCs for such Settlement Period divided by the
aggregate Principal Amount of Receivables which were originated by the Sellers
and purchased by the Company during the second preceding Settlement Period.
"Dilution Reserve Ratio" shall mean, as of any Settlement Report Date
and continuing until (but not including) the next Settlement Report Date, an
amount (expressed as a percentage) which is calculated as follows:
DRR = [[(c * d) + [(e-d) * (e/d)]] * f] +(g*h)
3
Where:
DRR = Dilution Reserve Ratio;
c = 2.5;
d = the average of the Dilution Ratios during the period of
twelve consecutive Settlement Periods ending prior to such
earlier Settlement Report Date;
e = the highest Dilution Ratio for any Settlement Period during
the period of twelve consecutive Settlement Periods ending
prior to such earlier Settlement Report Date;
f = the Dilution Horizon Factor;
g = the SQC reserve equal to the then accrued reserve amount
maintained by General Cable Industries, Inc. (and each other
Seller, if any) on account of SQCs, as determined by the
Master Servicer, divided by the Aggregate Receivables
Amount; and
h = 1.0 or, if the SQC reserve has been understated by greater
than 5%, 2.0 for each of the 12 months following such
understatement.
"Early Amortization Event" shall have the meanings assigned in Section
5.1 of this Supplement and Section 7.1 of the Pooling Agreement.
"Early Amortization Period" shall have the meaning assigned in Section
5.1 of this Supplement and Section 7.1 of the Pooling Agreement.
"Facility Account" means the Company's Account No. 4005296996 at PNC
Bank, Ohio, N.A.201 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000; ABA Number:
000000000; Ref: General Cable Capital Funding, Inc. Deposit Account.
"Fee Letter" shall mean the letter agreement dated as of May 9, 2001,
between the Agent, General Cable Industries, Inc., Conduit and the Company, as
amended from time to time pursuant to the Certificate Purchase Agreement.
"Funding Change Date" shall mean, (A) for each week, Wednesday, or if
such day is not a Business Day, the next Business Day, and (B) the last day of
the relevant Bank Rate Tranche Period in respect of each VFC Certificateholders'
Interest of a Committed Purchaser.
"Initial Invested Amount " shall mean $0.
4
"Interest and Fee Accrual Rate" shall mean, (a) with respect to an
Accrual Period during which no Bank Rate Tranche is outstanding, a rate equal to
One-Month LIBOR with respect to such Accrual Period plus 0.70%, (b) with
respect to an Accrual Period during which a Bank Rate Tranche is outstanding, a
rate equal to One-Month LIBOR with respect to such Accrual Period plus 3.50% or
(c) with respect to an Accrual Period occurring during an Early Amortization
Period, a rate equal to the Base Rate plus 2.00%.
"Interest Shortfall" shall have the meaning assigned in Section 3.4(b).
"Invested Amount" shall mean, with respect to any date of determination,
an amount equal to (i) the Initial Invested Amount plus (ii) the aggregate
principal amount of any Additional Invested Amounts purchased by the Certificate
Owners through the end of the preceding Business Day minus (iii) the aggregate
amount of distributions to the VFC Certificateholders made in respect of
principal on or prior to such date minus (iv) the aggregate Series 2001-VFC
Allocable Charged-Off Amount applied to the VFC Certificates on or prior to such
date pursuant to Section 3.5(b)(ii) plus (v) (but only to the extent of any
unreimbursed reductions made pursuant to clause (iv) above) the aggregate Series
2001-VFC Allocable Recoveries Amount applied to the VFC Certificates on or prior
to such date pursuant to Section 3.5(c)(i).
"Invested Percentage" shall mean, with respect to any Business Day (i)
during the Series 2001-VFC Revolving Period, the percentage equivalent of a
fraction, the numerator of which is the Series 2001-VFC Allocated Receivables
Amount as of the end of the immediately preceding Business Day and the
denominator of which is the Aggregate Receivables Amount as of the end of the
immediately preceding Business Day and (ii) during the Series 2001-VFC
Amortization Period the percentage equivalent of a fraction, the numerator of
which is the Series 2001-VFC Allocated Receivables Amount as of the end of the
last Business Day of the Series 2001-VFC Revolving Period (provided that if
during the Series 2001- VFC Amortization Period, a revolving period of any other
Outstanding Series ends, then, the numerator shall be the Series 2001-VFC
Allocated Receivables Amount as of the end of the Business Day on such date) and
the denominator of which is the greater of (A) the Aggregate Receivables Amount
as of the end of the Business Day on such date and (B) the sum of the numerators
used to calculate the Invested Percentage for all Outstanding Series on the
Business Day for which such percentage is determined.
"Issuance Date" shall mean May 9, 2001.
"LIBO Rate" shall mean, for any Bank Rate Tranche Period, a rate per
annum on any date equal to One-Month LIBOR for such Bank Rate Tranche Period,
plus 3.25%.
"Loss Reserve Ratio" shall mean, as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date, an amount
(expressed as a percentage) which is calculated as follows:
5
LRR = [(a * b)/c] * d
Where:
LRR = Loss Reserve Ratio;
a = the aggregate Principal Amount of Receivables originated by
the Sellers during the period immediately preceding such
earlier Settlement Report Date consisting of three (3)
Settlement Periods plus the number of days resulting from
subtracting 30 from the weighted average term to maturity of
the Receivables, as determined by the Master Servicer;
b = the highest three-month rolling average of the Sales-Based
Default Ratio that occurred during the period of twelve
consecutive Settlement Periods preceding such earlier
Settlement Report Date;
c = the Aggregate Receivables Amount as of the last day of the
Settlement Period preceding such earlier Settlement Report
Date; and
d = 2.5.
"Majority Certificateholders" shall mean, on any day, both (A) the
Committed Purchasers having aggregate Commitments of more than 50% of the
Purchase Limit and (B) for so long as a Cost of Funds Rate Tranche is
outstanding, the Agent (on behalf of the Noncommitted Purchasers).
"Minimum Ratio" shall mean, as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date, an amount
(expressed as a percentage) which is calculated as follows:
MR = a + (b * c)
Where:
MR = Minimum Ratio;
a = 22.5%;
b = the average of the Dilution Ratio during the period of the
twelve consecutive Settlement Periods ending prior to such
earlier Settlement Report Date; and
c = the Dilution Horizon Factor.
6
"Monthly Expense Amount" shall mean, for each Business Day in a
Settlement Period and the related Accrual Period, the sum of (i) the Series
2001-VFC Estimated Monthly Interest and Fee Expense for the related Accrual
Period, (ii) the Series 2001-VFC Estimated Monthly Servicing Fee for the related
Accrual Period, (iii) the amount of any unreimbursed Interest Shortfall for any
prior Settlement Period, (iv) the amount of any unpaid Series 2001-VFC Servicing
Fees for any prior Settlement Period and (v) all Series 2001-VFC Program Costs
estimated by the Servicer to be due and payable on the related Distribution Date
pursuant to Section 3.6(b)(iv).
"Monthly Facility Fee" shall mean for any Accrual Period, the product of
(i) the amount of annual Facility Fees specified in the Fee Letter multiplied by
(ii) the actual number of days in such Accrual Period divided by 360.
"Monthly Interest" shall mean, for any Distribution Date, the sum of the
amounts specified in clauses (A) and (B) of Section 3.4(a)(i).
"Monthly Interest and Fees" shall have the meaning assigned in Section
3.4(a)(i).
"Noncommitted Purchaser" shall have the meaning specified in Section 1.1
of the Certificate Purchase Agreement.
"One-Month LIBOR" shall mean for any Accrual Period or Bank Rate Tranche
Period, the rate per annum, as determined by the Agent, which is the arithmetic
mean (rounded to the nearest 1/100th of 1%) of the offered rates for dollar
deposits having a maturity of one month commencing on the first day of such
Accrual Period or Bank Rate Tranche Period that appears on the Bloomberg British
Bankers Assoc. Interest Settlement Rates Page (as defined below) at
approximately 11:00 a.m., London time, on the second full Business Day prior to
such date; provided, however, that if there shall at any time no longer exist a
Bloomberg British Bankers Assoc. Interest Settlement Rates Page, "One-Month
LIBOR" shall mean with respect to each day during each Accrual Period or Bank
Rate Tranche Period, the rate per annum equal to the rate at which The Chase
Manhattan Bank is offered dollar deposits at or about 10:00 a.m., New York City
time, two Business Days prior to the beginning of such Accrual Period or Bank
Rate Tranche Period in the interbank Eurodollar market for delivery on the first
day of such Accrual Period or Bank Rate Tranche Period for one month and in a
principal amount equal to an amount of not less than $1,000,000. "Bloomberg
British Bankers Assoc. Interest Settlement Rates Page" shall mean the display
designated as Page 3750 on the Telerate Service (or such other page as may
replace such page on such service for the purpose of displaying the rates at
which dollar deposits are offered by leading banks in the London interbank
deposit market).
"Optional Termination Date" shall have the meaning assigned in Section
2.6(b).
"Optional Termination Notice" shall have the meaning assigned in Section
2.6(b).
7
"Principal Balance" shall mean, when used with respect to any Business
Day, an amount equal to (a) the Initial Invested Amount, plus (b) the aggregate
principal amount of any Additional Invested Amounts purchased by the VFC
Certificate Owners through the end of the preceding Business Day pursuant to
Section 2.7, minus (c) the aggregate amount of principal payments made to VFC
Certificateholders prior to such Business Day.
"Purchase Date" shall have the meaning set forth in Section 2.7(b).
"Purchase Limit" shall have the meaning specified in Section 1.1 of the
Certificate Purchase Agreement.
"Purchasers" shall have the meaning specified in Section 1.1 of the
Certificate Purchase Agreement.
"Record Date" shall mean (i) initially, May 9, 2001 and (ii) thereafter,
with respect to any Distribution Date, the last Business Day of the calendar
month immediately preceding such Distribution Date.
"Reduction Notice" shall have the meaning assigned in Section 3.6(d).
"Reference Bank" shall mean, Bank One, NA or such other bank as the
Agent shall designate with the consent of the Seller.
"Required Notice Period" shall mean two Business Days.
"Required Reduction Amount" shall mean, on any Funding Change Date, the
amount, if any, by which (a) the Series 2001-VFC Target Receivables Amount
exceeds (b) the Series 2001-VFC Actual Allocable Receivables Amount.
"Reserve Ratio" shall mean, on any date of determination with respect to
VFC Certificates, the greater of (i) the sum of the Loss Reserve Ratio and the
Dilution Reserve Ratio and (ii) the Minimum Ratio.
"Sales-Based Default Ratio" shall mean, as of the last day of each
Settlement Period, the percentage equivalent of a fraction, the numerator of
which shall be the sum of (a) the aggregate unpaid Principal Amount of
Receivables that were unpaid for 91-120 days after their due date and (b) the
aggregate unpaid Principal Amount of Receivables which were charged off as
uncollectible during such Settlement Period prior to the day which is 91-120
days after their due date, and the denominator of which shall be the aggregate
Principal Amount of Receivables originated by the Sellers during the fourth
preceding Settlement Period.
"Scheduled Amortization Period Commencement Date" shall mean (i) May 1,
2004, or (ii) if otherwise extended by the Agent on behalf of the Purchasers,
the date to which so extended.
8
"Series 2001-VFC" shall mean Series 2001-VFC, the Principal Terms of
which are set forth in this Supplement.
"Series 2001-VFC Actual Allocable Receivables Amount" shall mean, on any
date of determination, the Aggregate Receivables Amount on such date multiplied
by the percentage equivalent of a fraction the numerator of which is the Series
2001-VFC Target Receivables Amount on such day and the denominator of which is
the Aggregate Target Receivables Amount on such date.
"Series 2001-VFC Allocable Charged-Off Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Charged-Off
Amount", if any, which has been allocated to Series 2001-VFC. The "Allocable
Charged-Off Amount" shall be allocated to the Series 2001-VFC based on the
Invested Percentage of the Series 2001-VFC as of the last Funding Change Date in
the corresponding Accrual Period.
"Series 2001-VFC Allocable Recoveries Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Recoveries
Amount", if any, which has been allocated to Series 2001-VFC. The "Allocable
Recoveries Amount" shall be allocated to the Series 2001-VFC based on the
Invested Percentage of the Series 2001-VFC as of the last Funding Change Date in
the corresponding Accrual Period.
"Series 2001-VFC Allocated Receivables Amount" shall mean, on any date
of determination, the lower of (i) the Series 2001-VFC Target Receivables Amount
on such date and (ii) the Series 2001-VFC Actual Allocable Receivables Amount on
such date.
"Series 2001-VFC Amortization Period" shall mean the period commencing
as a result of the Series 2001-VFC Amortization Period Commencement Date and
ending on the earliest to occur of (x) the date on which the Invested Amount
shall have been reduced to zero and all accrued and unpaid interest and fees on
the VFC Certificates shall have been paid and (y) the Series 2001-VFC
Termination Date.
"Series 2001-VFC Amortization Period Commencement Date" shall mean the
earlier to occur of (a) the Scheduled Amortization Period Commencement Date and
(b) the commencement of an Early Amortization Period.
"Series 2001-VFC Certificateholder" shall mean each Certificateholder of
a Series 2001-VFC Certificate.
"Series 2001-VFC Certificates" shall mean, collectively, those
Certificates designated as the Series 2001-VFC Variable Funding Certificates and
the Series 2001-VFC Subordinated Company Certificate.
"Series 2001-VFC Collection Subaccount" shall have the meaning assigned
in Section 3.2(a).
9
"Series 2001-VFC Estimated Monthly Interest and Fee Expense" shall mean,
for an Accrual Period, an amount equal to the product of (A) the Interest and
Fee Accrual Rate, (B) the greatest of (i) the Principal Balance on the first day
of such Accrual Period; (ii) the weighted average Principal Balance during the
preceding Accrual Period and (iii) if a Purchase Date occurs during such Accrual
Period, the Principal Balance after giving effect to all Additional Invested
Amounts purchased on such Purchase Date, and (C) a fraction, the numerator of
which is the actual number of days in such Accrual Period and the denominator of
which is 360.
"Series 2001-VFC Estimated Monthly Servicing Fee" shall mean, for an
Accrual Period, an amount equal to the product of (i) the Servicing Fee for such
Accrual Period and (ii) a fraction, the numerator of which is the aggregate
Commitments and the denominator of which is the Aggregate Invested Amount as of
the last day of the preceding Accrual Period.
"Series 2001-VFC Monthly Servicing Fee" shall have the meaning assigned
in Section 6.1.
"Series 2001-VFC Non-Principal Collection Sub-subaccount" shall have the
meaning assigned in Section 3.2(a).
"Series 2001-VFC Principal Collection Sub-subaccount" shall have the
meaning assigned in Section 3.2(a).
"Series 2001-VFC Program Costs" shall mean, for any Accrual Period, the
sum of (a) the product of (i) all unpaid fees and expenses due and payable to
counsel to, and independent auditors of, the Company (other than fees and
expenses payable on or in connection with the closing of any issuance of the VFC
Certificates) accrued during such Accrual Period and (ii) a fraction, the
numerator of which is the weighted average Series 2001-VFC Invested Amount
during such Accrual Period and the denominator of which is the Aggregate
Invested Amount during such Accrual Period and (b) all unpaid fees and expenses
due and payable to the Rating Agencies rating the VFC Certificates; provided,
however, that Series 2001-VFC Program Costs shall not exceed $50,000 in the
aggregate in any fiscal year of the Master Servicer.
"Series 2001-VFC Required Reserves" shall mean, (x) as of any date of
determination during the Series 2001-VFC Revolving Period, the sum of:
(a) an amount equal to the product of (i) the Adjusted
Invested Amount on such day (after giving effect to any increase or decrease
thereof on such day) and (ii) the percentage equivalent of a fraction (1) the
numerator of which is the Reserve Ratio and (2) the denominator of which is one
minus the Reserve Ratio;
10
(b) the product of (i) the Invested Amount on such day
(after giving effect to any increase or decrease thereof on such day) and (ii) a
fraction, the numerator of which is the Carrying Cost Reserve Ratio, and the
denominator of which is one minus the Reserve Ratio; and
(c) the product of (i) the aggregate Principal Amount of
Receivables in the Trust on such day, (ii) a fraction, the numerator of which is
the Invested Amount on such day (after giving effect to any increase or decrease
thereof on such day), and the denominator of which is the Aggregate Invested
Amount on such day, and (iii) a fraction, the numerator of which is the
Servicing Reserve Ratio, and the denominator of which is one minus the Reserve
Ratio,
and (y) on any date of determination during the Series 2001-VFC Amortization
Period, an amount equal to the Series 2001-VFC Required Reserves on the last
Business Day of the Series 2001-VFC Revolving Period; provided, in the case of
this clause (y), that such amount shall be adjusted on each Special Allocation
Settlement Report Date, if any, to the extent required as set forth in Section
3.5(b)(i) and Section 3.5(c)(ii).
"Series 2001-VFC Revolving Period" shall mean the period commencing on
the Issuance Date and terminating on the earlier to occur of the close of
business on (i) the Optional Termination Date and (ii) the day immediately
preceding the Series 2001-VFC Amortization Period Commencement Date.
"Series 2001-VFC Target Receivables Amount" shall mean, on any date of
determination, the sum of (i) the Adjusted Invested Amount on such date and (ii)
the Series 2001-VFC Required Reserves on such date.
"Series 2001-VFC Termination Date" shall mean the Distribution Date that
occurs in April 2005.
"Series 2001-VFC Principal Payment" shall have the meaning assigned in
Section 3.5.
"Servicing Reserve Ratio" shall mean, as of any Settlement Report Date
and continuing until the next Settlement Report Date, an amount (expressed as a
percentage) equal to (i) the product of (A) the Servicing Fee Percentage and (B)
2.0 times Days Sales Outstanding as of such Settlement Report Date divided by
(ii) 360.
"SQC" means Special Quantity Considerations, i.e., the rebate programs
effected in accordance with the Policies which are tied to sales volume on a
quarterly or annual basis.
"Stored Excess Funds" shall have the meaning specified in Section
3.3(c)(i).
"Subordinated Company Certificate" shall mean the Series 2001-VFC
Subordinated Company Certificate executed by the Company and authenticated by or
on behalf of the Trustee, substantially in the form of Exhibit B.
11
"Subordinated Company Certificate Amount" shall mean, for any date of
determination, an amount equal to the Series 2001-VFC Allocated Receivables
Amount on such date minus the Adjusted Invested Amount on such date.
"Subordinated Interest" shall have the meaning specified in Section
2.2(b).
"10% Seller" shall mean any Seller that originated Receivables during
the previous three months which constituted 10% or more of the Receivables of
all Sellers originated during such period.
"Trust Accounts" shall have the meaning assigned in Section 3.2(a).
"VFC Certificate" shall mean a Series 2001-VFC Variable Funding
Certificate executed by the Company and authenticated by or on behalf of the
Trustee, substantially in the form of Exhibit A.
"VFC Certificateholder" shall mean each Certificateholder of a VFC
Certificate.
"VFC Certificateholders' Interest" shall have the meaning assigned in
Section 2.2(a).
SECTION 1.2 Other Definitional Provisions. (a) All terms defined
in this Supplement or the Pooling Agreement shall have the defined meanings when
used in any certificates or other documents 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 1.1, and accounting terms partly defined in Section 1.1 to the extent
not defined, shall have the respective meanings given to them under GAAP. 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
or similar import when used in this Supplement shall refer to this Supplement as
a whole and not to any particular provision of this Supplement; and Section,
Schedule and Exhibit references contained in this Supplement are references to
Sections, Schedules and Exhibits in or to this Supplement unless otherwise
specified.
(d) The definitions contained in Section 1.1 are applicable
to the singular as well as the plural forms of such terms and the masculine, the
feminine and the neuter genders of such terms.
(e) Where reference is made in this Supplement or the
Pooling Agreement 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 1.1 of the Pooling Agreement) of such
Receivables.
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(f) Any reference herein or in any other Transaction
Document to a provision of the Internal Revenue Code, UCC or ERISA shall be
deemed a reference to any successor provision thereto.
(g) All references herein to any agreement or instrument
shall be deemed references to such agreement or instrument as amended or
modified from time to time, subject to compliance with any restrictions herein
on the amendment or modification of such agreement or instrument.
(h) Unless otherwise stated herein, as the context otherwise
requires, or if such term is otherwise defined in the Pooling Agreement, each
capitalized term used or defined herein shall relate only to the Series 2001-VFC
Certificates and to no other Series of Certificates issued by the Trust.
ARTICLE II
DESIGNATION OF CERTIFICATES; PURCHASE AND SALE
OF THE VFC CERTIFICATES
SECTION 2.1 Designation. The Certificates created and authorized
pursuant to the Pooling Agreement and this Supplement shall be divided into two
classes, which shall be designated respectively as (a) the "Series 2001-VFC
Variable Funding Certificates," and (b) the "Series 2001-VFC Subordinated
Company Certificate.
SECTION 2.2 The Series 2001-VFC Certificates. (a) The VFC
Certificates shall represent fractional undivided interests in the Trust,
consisting of the right to receive the sum of (i) the Invested Percentage
(expressed as a decimal) of the Collections received with respect to the
Receivables and of all other funds on deposit in the Collection Account and (ii)
to the extent such interests appear herein, all other funds on deposit in the
Series 2001-VFC Collection Subaccount and any subaccounts thereof (collectively,
the "VFC Certificateholders' Interest").
(b) The Subordinated Company Certificate shall represent a
fractional undivided interest in the Trust, consisting of the right to receive
Collections with respect to the Receivables allocated to the VFC
Certificateholders' Interest and not required to be distributed to or for the
benefit of the VFC Certificateholders (the "Subordinated Interest"). The
Exchangeable Company Certificate and any other Series of Certificates
outstanding shall represent the ownership interest in the remainder of the Trust
not allocated pursuant hereto to the VFC Certificateholders' Interest or the
Subordinated Interest.
(c) The VFC Certificates and the Subordinated Company
Certificate shall be issued in registered form in substantially the forms of
Exhibits A and B, respectively, and shall, upon issue, be executed and delivered
by the Company to the Trustee for authentication and redelivery as provided in
Section 2.3 hereof and Section 5.2 of the Pooling Agreement.
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SECTION 2.3 Delivery. On the Issuance Date, the Company shall
sign, on behalf of the Trust, and shall direct the Trustee in writing pursuant
to Section 5.2 of the Pooling Agreement to duly authenticate, and the Trustee,
upon receiving such direction, shall so authenticate (i) the VFC Certificates in
such denominations and in such names as are contained in such written directions
and the Trustee shall deliver such VFC Certificates in accordance with such
directions of the Company, and (ii) a Subordinated Company Certificate in
accordance with such directions of the Company and deliver such Subordinated
Company Certificate to the Company as the holder thereof.
SECTION 2.4 Limitations on Transfer. (a) Each VFC
Certificateholder represents and warrants, for U.S. federal income tax purposes,
that it is the beneficial owner of the VFC Certificates registered under its
name in the Certificate Register and either (i) is not, and will not become, a
partnership, Subchapter S corporation, or grantor trust or (ii) is a
partnership, Subchapter S corporation, or grantor trust but less than 50% of the
value of each of such entity's beneficial owners' interests in such entity is
attributable to such entity's interests in the Trust (including, without
limitation, the VFC Certificates and the Certificate Purchase Agreement).
(b) No VFC Certificate (or any interest therein) shall be sold,
transferred, assigned, participated, pledged or otherwise disposed of (any such
act, a "Transfer") to any Person except in accordance with the provisions of
this Section 2.4(b), and any attempted Transfer in violation of this Section
2.4(b) shall be null and void. The VFC Certificate will be transferable only in
minimum denomination of $5 million and only to a transferee which has delivered
to the Trustee an Investment Letter executed by the transferee in the form set
forth in Exhibit C hereto.
SECTION 2.5 [Intentionally Omitted].
SECTION 2.6 Procedure for Decreasing the Invested Amount. (a)
(i) On any Funding Change Date, the Company may reduce the Invested Amount by
causing the Agent to distribute funds to the VFC Certificateholders pursuant to
Section 3.6(d); provided that no Early Amortization Event has occurred and is
continuing.
(ii) On any Funding Change Date on which the Series
2001-VFC Target Receivables Amount exceeds the Series 2001-VFC Actual Allocable
Receivables Amount, the Company will be required to reduce the Invested Amount
by causing the Agent to distribute funds to the VFC Certificateholders pursuant
to Section 3.6(d) in an amount equal to the Required Reduction Amount; provided
that no Early Amortization Event has occurred and is continuing.
(b) (i) On any Business Day, the Company shall have the
right to deliver an irrevocable notice (an "Optional Termination Notice") to the
Trustee, the Agent and the Master Servicer in which the Company declares that
the Series 2001-VFC Revolving Period shall terminate on the date (the "Optional
Termination Date") set forth in such notice (which date, in any event, shall not
be less than 30 days from the date on which such notice is delivered).
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(ii) From and after the Optional Termination Date, the Series
2001-VFC Amortization Period shall commence for all purposes under the Pooling
Agreement and this Supplement and the other Transaction Documents. The Trustee
shall promptly forward the Optional Termination Notice to the VFC
Certificateholders.
SECTION 2.7 Additional Invested Amounts. (a) Each VFC
Certificateholder agrees, by acceptance of its VFC Certificate, that the Company
may, from time to time prior to the Facility Termination Date (as defined in the
Certificate Purchase Agreement) for such VFC Certificateholder or Certificate
Owner, upon satisfaction of the conditions set forth in Section 2.2 of the
Certificate Purchase Agreement, request that each Noncommitted Purchaser
acquire, and (if a Noncommitted Purchaser decides in its sole discretion not to
so acquire) require that each Committed Purchaser acquire, as of any Funding
Change Date, additional undivided interests in the Trust in specified amounts
(such amounts, the "Additional Invested Amount"); provided, that the Series
2001-VFC Target Receivables Amount does not exceed the Series 2001-VFC Allocated
Receivables Amount, after giving effect to any increase in the Invested Amount
and the Series 2001-VFC Required Reserves on such Funding Change Date. On each
Funding Change Date, the Invested Amount and the Series 2001-VFC Required
Reserves (and each other amount set forth herein, the calculation of which is
based on such amounts) shall be recalculated to include the Additional Invested
Amounts with respect to the VFC Certificates. The aggregate Additional Invested
Amounts to be purchased shall have a minimum aggregate amount of $1,000,000 or
more, and shall be in integral multiples of $100,000.
(b) The Company shall give to the Agent written notice in conformity
with the Required Notice Period of the sale of Additional Invested Amounts
specifying (i) the aggregate amount of requested Additional Invested Amounts and
(ii) the applicable Funding Change Date (the "Purchase Date") on which the
Company wishes such purchase to occur (which date shall be a Business Day). On
the Business Day immediately after the Purchase Date, the Agent shall report to
the Company, the Master Servicer and in writing to the Trustee (i) the amount of
the Additional Invested Amounts purchased by the Noncommitted Purchasers and
(ii) the amount of the Additional Invested Amounts purchased by the Committed
Purchasers.
(c) Each Noncommitted Purchaser may, but shall not be obligated to,
purchase its Noncommitted Purchaser Percentage (as defined in the Certificate
Purchase Agreement) of any Additional Invested Amounts offered by the Company
pursuant to Section 2.7(b). Each Committed Purchaser shall purchase its share of
the Additional Invested Amounts not so purchased by the Noncommitted Purchasers
pursuant to the immediately previous sentence in accordance with the Certificate
Purchase Agreement. In no event shall any Additional Invested Amounts be
purchased if, after giving effect thereto, the Principal Balance on the
applicable Funding Change Date (after giving effect to those purchases which are
made on the applicable Funding Change Date) would exceed the Purchase Limit. The
Agent, on behalf of the Purchasers, shall pay by wire transfer of immediately
available funds the purchase price for such Additional Invested Amounts to the
Facility Account no later than 12:00 p.m. (Chicago time) on the Purchase Date.
15
(d) If the VFC Certificateholders acquire such additional interest,
then in consideration of such VFC Certificateholders' payments of the Additional
Invested Amount, the Master Servicer shall appropriately note such Additional
Invested Amount on the related Daily Report, and the Invested Amount of the VFC
Certificates will be equal to the Invested Amount of the VFC Certificates stated
in such Daily Report.
(e) Subject to the provisions of Sections 2.7(c) and (d), the
failure of any VFC Certificateholder to purchase any Additional Invested Amounts
in accordance with this Section 2.7 and the Certificate Purchase Agreement shall
not in itself relieve any other VFC Certificateholder of its obligation to
purchase any Additional Invested Amounts. Notwithstanding any provision to the
contrary contained in this Section 2.7, no VFC Certificateholder shall be
required to purchase any Additional Invested Amounts unless the conditions to
such purchase contained in the Certificate Purchase Agreement (including,
without limitation, Section 2.2 thereof) have been satisfied.
(f) Each VFC Certificateholder shall and is hereby authorized to
record on the grid attached to its VFC Certificate (or at such VFC
Certificateholder's option, in its internal books and records) the date and
amount of any Additional Invested Amount purchased by it, and each repayment
thereof; provided that failure to make any such recordation on such grid or any
error in such grid shall not adversely affect such VFC Certificateholder's
rights with respect to its Invested Amount and its right to receive interest
payments in respect of the Principal Balance held by such VFC Certificateholder.
ARTICLE III
ARTICLE III OF THE POOLING AGREEMENT
SECTION 3.1 of the Pooling Agreement shall be read in its
entirety as provided in the Pooling Agreement. Article III of the Pooling
Agreement (except for Section 3.1 thereof and any portion thereof relating to
another Series) shall read in its entirety as follows and shall be exclusively
applicable to the Series 2001-VFC Certificates:
SECTION 3.2. Establishment of Trust Accounts. (a) The Trustee
shall cause the following accounts (together with the accounts listed on
Schedule 1, the "Trust Accounts") to be established and maintained in the name
of the Trust:
(i) a subaccount of the Collection Account (the
"Series 2001-VFC Collection Subaccount"); and
(ii) two subaccounts of the Series 2001-VFC
Collection Subaccount: (x) the Series 2001-VFC Principal Collection
Sub-subaccount (the "Series 2001-VFC Principal Collection Sub- subaccount"), and
(y) the Series 2001-VFC Non-Principal Collection Sub-subaccount (the "Series
2001- VFC Non-Principal Collection Sub-subaccount").
16
Each account specified in clauses (i) and (ii) above will be held (and will bear
a designation clearly indicating that the funds deposited therein are held) (A)
for the benefit of the VFC Certificateholders and (B) for the benefit, subject
to the prior interests of the VFC Certificateholders, of the holder of the
Subordinated Company Certificate. The Trustee on behalf of the Series 2001-VFC
Certificateholders shall possess all right, title and interest in all funds from
time to time on deposit in, and all Eligible Investments credited to, the Trust
Accounts and in all proceeds thereof. The Trust Accounts shall be under the sole
dominion and control of the Trustee for the exclusive benefit of (i) the VFC
Certificateholders, and (ii) subject to the prior interest of the VFC
Certificateholders, the holder of the Subordinated Company Certificate.
(b) After giving effect to any distribution to the Company
pursuant to Section 3.3(c), amounts on deposit and available for investment in
the Series 2001-VFC Principal Collection Sub- subaccount shall be invested by
the Trustee at the written direction of the Master Servicer in Eligible
Investments that mature, or that are payable or redeemable upon demand of the
holder thereof, (i) in the case of any such investment made during the Series
2001-VFC Revolving Period, on or prior to the next Business Day and (ii) in the
case of any such investment made during the Series 2001-VFC Amortization Period,
on or prior to the Business Day immediately preceding the next Funding Change
Date. Amounts on deposit and available for investment in the Series 2001-VFC
Non-Principal Collection Sub-subaccount shall be invested by the Trustee at the
written direction of the Master Servicer in Eligible Investments that mature, or
that are payable or redeemable upon demand of the holder thereof, on or prior to
the Business Day immediately preceding the subsequent Distribution Date. All
interest and investment earnings (net of losses and investment expenses) on
funds deposited in the Series 2001-VFC Principal Collection Sub- subaccount
shall be deposited in the Series 2001-VFC Non-Principal Collection
Sub-subaccount. All Eligible Investments in the Trust Accounts shall be held by
the Trustee for the exclusive benefit of (i) the VFC Certificateholders and (ii)
subject to the prior interest of the VFC Certificateholders, the
Certificateholder of the Subordinated Company Certificate.
SECTION 3.3. Daily Allocations. (a) The portion of Aggregate
Daily Collections allocated to the Series 2001-VFC Certificates pursuant to
Article III of the Pooling Agreement shall be allocated and distributed as set
forth in this Article III by the Trustee based solely on the information
provided it by the Master Servicer in the Daily Report (upon which the Trustee
may conclusively rely).
(b)(i) On each Business Day during a Settlement Period, an
amount equal to the excess, if any, of (A) the Monthly Expense Amount for the
related Accrual Period (or such greater amount as the Company may request in
writing) over (B) the amount, if any, previously transferred during such
Settlement Period to the Series 2001-VFC Non-Principal Collection Sub-subaccount
pursuant to this clause (i), shall be transferred by the Trustee from the Series
2001-VFC Collection Subaccount to the Series 2001-VFC Non-Principal Collection
Sub-subaccount.
17
(ii) Following the transfer pursuant to clause (i) above, any
remaining funds on deposit in the Series 2001-VFC Collection Subaccount shall be
transferred by the Trustee to the Series 2001-VFC Principal Collection
Sub-subaccount.
(c)(i) On each Business Day during the Series 2001-VFC
Revolving Period (including Distribution Dates), after giving effect to all
allocations of Aggregate Daily Collections on such Business Day, amounts on
deposit in the Series 2001-VFC Principal Collection Sub-subaccount shall (but
only to the extent that the Trustee has received a Daily Report which reflects
the receipt of the Collections on deposit therein and after any payments of
principal to the VFC Certificateholders pursuant to Section 2.6(a) and Section
3.6(d) have been made) be distributed by the Trustee to the Company in
accordance with the directions contained in the Daily Report; provided that such
distributions shall be made only if no Potential Early Amortization Event
pursuant to clause (e) of Section 5.1 hereof and clauses 7.1(a)(ii) and (iii) of
the Pooling Agreement and no Early Amortization Period has occurred and is
continuing and only to the extent that, after giving effect to such
distributions, the Series 2001-VFC Target Receivables Amount would not exceed
the Series 2001-VFC Allocated Receivables Amount provided further that if the
Master Servicer shall have given notice to the Trustee of a Reduction and the
related Principal Distribution Amount, pursuant to subsection 3.6(d), the
Trustee shall retain, until the related Funding Change Date, aggregate amounts
on deposit in the Series 2001-VFC Principal Collection Sub-subaccount equal to
the Principal Distribution Amount in respect thereof; provided still further
that in the event that the amount transferred from the Series 2001-VFC
Collection Subaccount to the Series 2001-VFC Non-Principal Collection
Sub-subaccount on such day pursuant to subsection 3.3(b)(i) is less than the
amount required to be so transferred, subject to the limitation set forth in the
preceding proviso, the amount on deposit in the Series 2001-VFC Principal
Collection Sub-subaccount, up to the amount of such deficiency, shall, net of
any unpaid Series 2001-VFC Program Costs (without giving effect to the
limitation contained in the proviso of the definition of Series 2001-VFC Program
Costs), be transferred to the Series 2001-VFC Non-Principal Collection Sub-
subaccount. Amounts distributed to the Company hereunder shall be deemed to be
paid first from Collections received directly by the Master Servicer and second
from Collections received in the Lockboxes or paid into the Concentration
Account. Funds distributed to the Company pursuant to this Section 3.3(c) will
be considered "Stored Excess Funds." On any Funding Change Date during the
Series 2001-VFC Revolving Period, in addition to the amounts on deposit in the
Series 2001-VFC Principal Sub- subaccount, Stored Excess Funds distributed to
the Company since the preceding Funding Change Date will be available to be
distributed by the Trustee to the VFC Certificateholders to reduce the Invested
Amount as provided in Section 2.6(a) and 3.6(d) hereof.
(ii) On each Business Day during the Series 2001-VFC
Amortization Period (including Distribution Dates), funds deposited in the
Series 2001-VFC Principal Collection Sub-subaccount shall be invested in
accordance with Section 3.2(b) and such funds (net of interest and investment
earnings) shall be distributed on each Funding Change Date in accordance with
Section 3.6(c). Except as otherwise provided in Section 3.6(c), no amounts on
deposit in the Series 2001-VFC Principal Collection Sub-subaccount shall be
distributed by the Trustee to the Company during the Series 2001-VFC
Amortization Period.
18
(iii) The allocations to be made pursuant to this Section 3.3
are subject to the provisions of Sections 2.6, 7.2, 9.1 and 9.2 of the Pooling
Agreement.
SECTION 3.4. Determination of Interest. (a) The amount of
interest, fees and other non-principal obligations distributable with respect
to the VFC Certificates on each Distribution Date for the related Accrual Period
shall be determined as follows:
(i) The sum of (A) an amount equal to the accrued and unpaid
CP Costs during the related Accrual Period with respect to the Cost of
Funds Rate Tranche determined in accordance with Article IV of the
Certificate Purchase Agreement with respect to the Distribution Date;
provided, however, on and after the commencement of an Early
Amortization Period, interest shall accrue on the Cost of Funds Rate
Tranche at the Base Rate plus 2% for such Accrual Period and (B) an
amount equal to the interest accrued on each Bank Rate Tranche at the
related Bank Rate for the period of time each such Bank Rate Tranche was
outstanding during the related Accrual Period provided, however, on and
after the commencement of an Early Amortization Period, interest shall
accrue on the Bank Rate Tranche at the Base Rate plus 2% for such
Accrual Period and (C) the Actual Monthly VFC Fees and (D) the Actual
Monthly Additional Amounts shall be the "Monthly Interest and Fees"; and
(ii) The Master Servicer shall notify the Trustee in writing
(upon which the Trustee may conclusively rely) two Business Days prior
to each Settlement Report Date of the amounts calculated pursuant to
clause (i) above.
(b) On each Distribution Date, the Master Servicer shall
determine the excess, if any (the "Interest Shortfall"), of (A) the Monthly
Interest and Fees for such Distribution Date over (B) the amount which will be
available to be distributed to the VFC Certificateholders on such Distribution
Date in respect thereof pursuant to this Supplement. If the Interest Shortfall
with respect to any Distribution Date is greater than zero, an additional amount
("Additional Interest") equal to the product, for such Accrual Period (or
portion thereof) until such Interest Shortfall is paid, of (A) the Base Rate
plus 2.0% for such Accrual Period, (B) such Interest Shortfall (or the portion
thereof which has not been paid to the VFC Certificateholders) and (C) the
actual number of days in such Accrual Period divided by 360, shall be payable as
provided herein with respect to the VFC Certificates on each Distribution Date
following such Distribution Date to and including the Distribution Date on which
such Interest Shortfall is paid in full to the VFC Certificateholders.
SECTION 3.5. Determination of Series 2001-VFC Principal.
(a) Payments of Series 2001-VFC Monthly Principal. The
aggregate amount (the "Series 2001-VFC Principal Payment") distributable from
the Series 2001-VFC Principal Collection Sub- subaccount on each Distribution
Date during the Series 2001-VFC Amortization Period shall be equal to the amount
on deposit in such account on the immediately preceding Business Day; provided,
that the
19
Series 2001-VFC Principal Payment on any Distribution Date shall not exceed the
Invested Amount on such Distribution Date after giving effect to the reductions
and increases pursuant to paragraphs (b) and (c) below.
(b) Reductions to Series 2001-VFC Principal. If, on any
Special Allocation Settlement Report Date, the Series 2001-VFC Allocable
Charged-Off Amount is greater than zero for the related Settlement Period, the
Trustee shall (in accordance with the written directions from the Master
Servicer, upon which the Trustee may conclusively rely) make the following
applications of such amounts in the following order of priority:
(i) the Series 2001-VFC Required Reserves shall be reduced
(but not below zero) by an amount equal to the Series 2001-VFC Allocable
Charged-Off Amount (which shall also be reduced by the amount so
applied); and
(ii) then, to the extent that the Series 2001-VFC Allocable
Charged-Off Amount is greater than zero following the application in
clause (i) above, the Invested Amount shall be reduced (but not below
zero) by an amount equal to such remaining Series 2001-VFC Allocable
Charged-Off Amount (which shall also be reduced by the amount so
applied).
(c) Increases to Series 2001-VFC Principal. If, on any
Special Allocation Settlement Report Date, the Series 2001-VFC Allocable
Recoveries Amount is greater than zero for the related Settlement Period, the
Trustee shall (in accordance with the written directions from the Master
Servicer) make the following applications (after giving effect to the
applications in paragraph (b)) of such amount in the following order of
priority:
(i) the Invested Amount shall be increased (but only to the
extent of any previous reductions of the Invested Amount pursuant to
Section 3.5(b)(ii)) by the amount of the Series 2001-VFC Allocable
Recoveries Amount (which shall also be reduced by the amount so
applied); and
(ii) then, to the extent that the Series 2001-VFC Allocable
Recoveries Amount is greater than zero following the application in
clause (i) above, the Series 2001-VFC Required Reserves shall be
increased (but only to the extent of any previous reductions of the
Series 2001-VFC Required Reserves pursuant to Section 3.5(b)(i)) by the
amount of such remaining Series 2001-VFC Allocable Recoveries Amount
(which shall also be reduced by the amount so applied).
SECTION 3.6. Applications. (a) The Trustee shall distribute to
the 2001-VFC Certificateholders (to the extent funds are available), on each
Distribution Date, beginning with the June 2001 Distribution Date, from funds on
deposit in the Series 2001-VFC Non-Principal Collection Sub-subaccount an
amount equal to the Monthly Interest payable on such Distribution Date, plus the
amount of any Monthly Interest previously due but not distributed to the VFC
Certificateholders on a prior
20
Distribution Date, plus the amount of any Additional Interest for such
Distribution Date and any Additional Interest previously due but not distributed
to the VFC Certificateholders on a prior Distribution Date; provided, however,
that during the Series 2001-VFC Amortization Period, no Additional Interest will
be paid until repayment in full of the Invested Amount and all Monthly Interest
has been paid and all payments pursuant to Section 3.6(b)(i), (ii) and (iii)
have been paid. Prior to each Distribution Date, to the extent the Series
2001-VFC Non-Principal Collection Sub-subaccount does not contain sufficient
funds to make the distributions contained in this Section 3.6(a), the Trustee
shall, upon receipt of instructions from the Master Servicer (on which the
Trustee may conclusively rely), direct the Company to deposit Stored Excess
Funds for such Accrual Period in an amount equal to such deficit in the Series
2001-VFC Non-Principal Collection Sub-subaccount. All distributions under
Sections 3.6(a), 3.6(b) and 3.6(c) shall be made in accordance with the Daily
Reports and the Monthly Settlement Statement (upon which the Trustee may
conclusively rely).
(b) On each Distribution Date (to the extent funds are
available), the Trustee shall apply funds remaining on deposit in the Series
2001-VFC Non-Principal Collection Sub-subaccount and any remaining Stored Excess
Funds for such Accrual Period following the application pursuant to Section
3.6(a) above in the following order of priority:
(i) an amount equal to any Actual Monthly VFC Fees for such
Distribution Date plus any unpaid Actual Monthly VFC Fees for any prior
Distribution Date shall be withdrawn from the Series 2001-VFC
Non-Principal Collection Sub-subaccount by the Trustee and paid to the
Persons owed such amounts;
(ii) an amount equal to any Actual Monthly Additional Amounts
for the Accrual Period ending prior to such Distribution Date plus any
unpaid Actual Monthly Additional Amounts for any prior Accrual Period
shall be withdrawn from the Series 2001-VFC Non-Principal Collection
Sub-subaccount and paid to the Persons owed such amounts;
(iii) an amount equal to the Series 2001-VFC Monthly Servicing
Fee for the related Settlement Period plus any unpaid Series 2001-VFC
Monthly Servicing Fee for any prior Settlement Period shall be withdrawn
from the Series 2001-VFC Non-Principal Collection Sub- subaccount by the
Trustee and paid to the Master Servicer (less amounts payable to the
Trustee pursuant to Section 8.5 of the Pooling Agreement which shall be
paid to the Trustee);
(iv) an amount equal to the Series 2001-VFC Program Costs for
the Accrual Period ending prior to such Distribution Date plus any
unpaid Series 2001-VFC Program Costs for any prior Accrual Period shall
be withdrawn from the Series 2001-VFC Non-Principal Collection Sub-
subaccount by the Trustee and paid to the Persons owed such amounts; and
(v) any remaining amount on deposit in the Series 2001-VFC
Non-Principal Collection Sub-subaccount on any Distribution Date (in
excess of the Monthly Expense Amount
21
as of such day) not allocated pursuant to Section 3.6(a) or clauses (i),
(ii), (iii) and (iv) above shall be retained in the Series 2001-VFC
Non-Principal Collection Sub-subaccount and invested in accordance with
Section 3.2(b); provided, however, that during the Series 2001-VFC
Amortization Period, such remaining amounts other than amounts relating
to the Accrual Period containing such Distribution Date shall be
deposited in the Series 2001-VFC Principal Collection Sub-subaccount for
distribution in accordance with Section 3.6(c); provided further, that
no such distribution shall be made until all Series 2001-VFC Program
Costs are paid, without giving effect to the limitation contained in the
proviso of the definition of Series 2001-VFC Program Costs.
(c) During the Series 2001-VFC Amortization Period, the
Trustee shall apply, on each Funding Change Date, amounts on deposit in the
Series 2001-VFC Principal Collection Sub-subaccount in the following order of
priority:
(i) an amount equal to the Series 2001-VFC Principal Payment
for such Funding Change Date shall be distributed from the Series
2001-VFC Principal Collection Sub-subaccount pro rata to the VFC
Certificateholders until the repayment in full of the Invested Amount on
such date.
(ii) if, following the repayment in full of the Invested
Amount, any amounts are owed to the Trustee or any other Person, on
account of its expenses, advances and disbursements incurred in respect
of the performance of its responsibilities hereunder or as Successor
Servicer, such amounts shall be transferred from the Series 2001-VFC
Principal Collection Sub-subaccount and paid to the Trustee or such
other Person;
(iii) in the event that the amount transferred from the Series
2001-VFC Collection Subaccount to the Series 2001-VFC Non-Principal
Collection Sub-subaccount on any day pursuant to subsection 3.3(b)(i) is
less than the amount required to be so transferred, the amount on
deposit in the Series 2001-VFC Principal Collection Sub-subaccount, up
to the amount of such deficiency, shall, net of any unpaid Series
2001-VFC Program Costs (without giving effect to the limitation
contained in the proviso of the definition of Series 2001-VFC Program
Costs), be transferred to the Series 2001-VFC Non-Principal Collection
Sub-subaccount; and
(iv) if, following the repayment or deposit of all of the
amounts set forth in clauses (i), (ii) and (iii) above, the remaining
amount on deposit in the Series 2001-VFC Principal Collection
Sub-subaccount on such Funding Change Date, if any, shall be distributed
to the holder of the Subordinated Company Certificate; provided however,
that no such distribution shall be made until all Series 2001-VFC
Program Costs are paid, without giving effect to the limitation
contained in the proviso of the definition of Series 2001-VFC Program
Costs; provided, further that no such distribution shall be made if,
after giving effect to such distribution, the Series 2001-VFC Target
Receivables Amount would be greater than the Series 2001-VFC Actual
Allocable Receivables Amount.
22
(d) The Company shall provide the Trustee and the Agent with
prior written notice in conformity with the Required Notice Period of any
reduction of the Invested Amount requested by the Company (a "Reduction
Notice"). Such Reduction Notice shall designate (i) the Funding Change Date on
which such reduction shall occur and (ii) the proposed amount of principal to be
repaid (the "Principal Distribution Amount"). On each Funding Change Date on
which principal will be repaid during the Series 2001-VFC Revolving Period, the
Trustee shall pay the Principal Distribution Amount from funds in the Series
2001-VFC Principal Sub-subaccount and, to the extent necessary, direct the
Company to deposit Stored Excess Funds distributed to the Company in the Series
2001-VFC Principal Sub-subaccount to be distributed, pro rata to the VFC
Certificateholders, in accordance with instructions of the Company, as set forth
by the Master Servicer on its behalf in the Daily Report for such Business Day,
which instructions provide that the Company shall apply all such funds to the
reduction of the Invested Amount.
SECTION 3.7 Taxes. In the event any tax is required under
applicable law to be withheld or deducted from any payment to a VFC
Certificateholder hereunder or under any VFC Certificate, such tax shall reduce
the amount otherwise distributable to the VFC Certificateholder hereunder or
under any VFC Certificate. The Trustee (or Paying Agent) is hereby authorized
and directed to retain from amounts otherwise distributable to a VFC
Certificateholder sufficient funds for the payment of any tax that is so
required to be withheld or deducted (but such authorization shall not prevent
the Trustee (or Paying Agent) from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any tax so withheld or deducted
with respect to a VFC Certificateholder shall be treated as cash distributed to
such VFC Certificateholder at the time it is withheld by the Trustee (or Paying
Agent). If there is a possibility that any tax is required to be withheld or
deducted on a payment to a VFC Certificateholder, the Trustee (or Paying Agent)
shall seek advice from its counsel or accountants regarding its obligation to so
withhold or deduct. Each VFC Certificateholder shall indemnify and hold harmless
the Trust, the Trustee and the Company for any claims, liabilities and expenses
of whatever nature relating to the Trust's, the Trustee's or the Company's
obligation to withhold and to pay over, or otherwise pay, any withholding or
other taxes payable as a result of such VFC Certificateholder's interest in the
Trust, except that such VFC Certificateholder shall not be liable for any
interest or penalties owed by the Trust, the Trustee or the Company if the
failure to withhold or pay any tax was due to any negligence or failure to take
reasonable actions by such Trust, Trustee or Company; provided, however, that
any such failure to withhold or pay as a result of compliance with any provision
of the Pooling Agreement (including, without limitation, Section 5.9 regarding
tax treatment) shall not be treated as constituting negligence or failure to
take reasonable action.
23
ARTICLE IV
DISTRIBUTIONS AND REPORTS
Article IV of the Pooling Agreement (except for any portion
thereof relating to another Series) shall read in its entirety as follows and
the following shall be exclusively applicable to the VFC Certificates:
SECTION 4.1. Distributions. (a) The final distribution of
principal in respect of the VFC Certificates will be made after due notice by
the Trustee of the pendency of such distribution (subject to at least five
Business Days prior written notice from the Master Servicer to the Trustee
containing all information required for the Trustee's notice, upon which the
Trustee may conclusively rely) and only upon presentation and surrender of such
VFC Certificates at the office of the Paying Agent or at the Corporate Trust
Office of the Trustee, by check drawn on, or by transfer to an account
maintained by the holder with, a bank in New York City. Any other distribution
of principal in respect of the VFC Certificates or on account of interest or
fees on the VFC Certificates on each Distribution Date will be made or caused to
be made by the Paying Agent or the Trustee to the persons in whose name the VFC
Certificates are registered at the close of business on the related Record Date.
Such payment will be made by a check mailed to the VFC Certificateholders at
such VFC Certificateholders' registered addresses or, upon application by any
VFC Certificateholder of at least $5,000,000 in original principal amount
thereof to the Trustee not later than five Business Days prior to the related
Distribution Date, by transfer to an account maintained by the VFC
Certificateholder.
(b) All allocations and distributions hereunder shall be in
accordance with the Daily Reports and the Monthly Settlement Statement (upon
which the Trustee may conclusively rely) and subject to Section 3.1(h) of the
Pooling Agreement.
SECTION 4.2. Statements and Notices. (a) Monthly Settlement
Statements. On each Settlement Report Date (commencing with June 11, 2001), the
Master Servicer shall deliver to the Trustee and the Agent a Monthly Settlement
Statement (in the form of Exhibit E) setting forth, among other things, the Loss
Reserve Ratio, the Dilution Reserve Ratio and the Minimum Ratio, each as
recalculated for the next succeeding Settlement Period. The Trustee shall
forward a copy of each Monthly Settlement Statement to any VFC Certificateholder
upon request by such VFC Certificateholder.
(b) Annual Certificateholders' Tax Statement. On or before
April 1 of each calendar year (or such earlier date as required by applicable
law), beginning with April 1, 2002, the Company shall furnish, or cause to be
furnished, to the Trustee and to each Person who at any time during the
preceding calendar year was a VFC Certificateholder, a statement prepared by the
Company containing the aggregate amount distributed to such Person for such
calendar year or the applicable portion thereof during which such Person was a
VFC Certificateholder, together with such other information as is required to be
provided by an issuer of indebtedness under the Internal Revenue Code and such
other customary
24
information as the Master Servicer deems necessary or desirable to enable the
VFC Certificateholders to prepare their tax returns. Such obligation of the
Company shall be deemed to have been satisfied to the extent that substantially
comparable information shall have been provided by the Trustee pursuant to any
requirements of the Internal Revenue Code as from time to time in effect.
(c) Early Amortization Event Notices. As promptly as
reasonably practicable after its receipt of written notice of the occurrence of
an Early Amortization Event with respect to Series 2001-VFC, the Trustee shall
forward notice of such occurrence to (i) the Agent and (ii) each VFC
Certificateholder.
SECTION 4.3. Notices. Notices required to be given to the VFC
Certificateholders hereunder will be given by first class mail to the address of
such holders as they appear in the Certificate Register.
ARTICLE V
ADDITIONAL EARLY AMORTIZATION EVENTS
SECTION 5.1 Additional Early Amortization Events. If any one of the
events specified in Section 7.1 of the Pooling Agreement (after any grace
periods or consents applicable thereto) or any one of the following events
(each, an "Early Amortization Event") shall occur with respect to the Series
2001-VFC Certificates:
(a) (i) failure on the part of the Master Servicer to direct any
payment or deposit to be made or failure of any payment or deposit to be made in
respect of principal or interest owing on any VFC Certificates within two
Business Days of the date such interest or principal is due or (ii) failure on
the part of the Master Servicer to direct any payment or deposit to be made or
of the Company to make any payment or deposit in respect of any other amounts
owing by the Company to or for the benefit of the VFC Certificateholders or the
Agent within five Business Days of the date such other amount is due.
(b) failure on the part of the Company or the Master
Servicer duly to observe or perform any covenants or agreements of the Company
or the Master Servicer, as applicable, set forth in the Pooling Agreement or
this Supplement which continues unremedied until 15 days after the earlier of
(i) the date any Responsible Officer of the Company or the Master Servicer (so
long as the Master Servicer is an Affiliate of the Company) obtains knowledge of
such failure and (ii) the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Company or the
Master Servicer, as applicable, by the Trustee, or the Company or the Master
Servicer, as applicable, and the Trustee by the Majority Certificateholders;
25
(c) any representation or warranty made by the Company or
the Master Servicer in the Pooling Agreement or this Supplement to or for the
benefit of the VFC Certificateholders shall prove to have been incorrect when
made or when deemed made which continues to be incorrect until 15 days after the
earlier of (i) the date any Responsible Officer of the Company or the Master
Servicer (so long as the Master Servicer is an Affiliate of the Company) obtains
knowledge of such failure and (ii) the date on which notice of such failure,
requiring the same to be remedied, shall have been given by the Trustee to the
Company or the Company and the Trustee by the Majority Certificateholders;
provided, however, that an Early Amortization Event with respect to the Series
2001-VFC Certificates shall not be deemed to have occurred under this paragraph
if the incorrectness of such representation or warranty gives rise to an
obligation to acquire the related Receivables and the Company has acquired the
related Receivable or all such Receivables, if applicable, in accordance with
the provisions of Section 2.5 of the Pooling Agreement within two Business Days
of when the Company was obligated to do so;
(d) a Master Servicer Default with respect to the Master
Servicer shall have occurred and be continuing;
(e) the Series 2001-VFC Allocated Receivables Amount shall
be less than the Series 2001-VFC Target Receivables Amount for any period of
five consecutive Business Days;
(f) a Purchase Termination Event (as defined in the
Receivables Sale Agreement) shall have occurred and be continuing under the
Receivables Sale Agreement with respect to Parent or any 10% Seller;
(g) a Change in Control shall have occurred;
(h) any of the Pooling Agreement, this Supplement, the
Certificate Purchase Agreement, the Fee Letter or the Receivables Sale Agreement
shall cease, for any reason, to be in full force and effect, or the Company,
Parent or any Affiliate thereof shall so assert in writing;
(i) the Trust shall for any reason cease to have (x) a valid
and perfected first priority undivided ownership or security interest in the
Trust Assets (other than Trust Assets in which a security interest cannot be
perfected by filing a financing statement under Article 9 of the UCC (the "Other
Trust Assets")) or (y) a valid undivided ownership or security interest in the
Other Trust Assets, subject in each case only to Permitted Liens described in
clauses (i) and (iii) of the definition thereof;
(j) there shall have been filed against any Seller, the
Company or the Trust (i) a notice of federal tax Lien with respect to taxes from
the Internal Revenue Service or (ii) a notice of Lien with respect to amounts
from the PBGC 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 either of such sections applies, unless there shall have been
delivered to the Trustee, each Rating Agency and the Agent (on behalf of the
Purchasers) proof of the release of, or payment of amounts secured by, such
Lien, or there
26
shall have been provided security for the payment of all amounts secured by such
Lien pursuant to arrangements reasonably satisfactory in form and substance to
the Trustee, the Rating Agencies and the Agent (on behalf of the Purchasers);
(k) each of the following occurs: (i) subsequent to the
Issuance Date either Parent or General Cable Corporation issues public debt for
which either Standard & Poor's Ratings Services ("S&P") or Xxxxx'x Investors
Service, Inc. ("Moody's") establishes a rating (each, a "Debt Rating") and (ii)
the Debt Rating of Parent or General Cable Corporation, as applicable, is (A)
withdrawn or reduced on any occasion by S&P to a level below "B+" or (B)
withdrawn or reduced on any occasion by Moody's to a level below "B1";
(l) the rating on the Series 2001-VFC Certificates or any
other series of Certificates issued by the Trust is (a) withdrawn, reduced to a
level below its initial rating or put on credit watch with negative implication
by S&P or (b) withdrawn, reduced to a level below its initial rating or put on
credit watch with negative implication by Moody's, or
(m) with respect to the Performance Undertaking, (i) failure
on the part of General Cable Corporation (the "Provider") to perform in any
material respect any agreements of the Provider set forth in the Performance
Undertaking, (ii) any representation or warranty of the Provider in the
Performance Undertaking shall prove incorrect in any material respect, (iii)
Provider repudiates the Performance Undertaking, (iv) an Insolvency Event shall
have occurred with respect to the Provider, (v) failure of the Performance
Undertaking to be enforceable against the Provider, and (vi) failure by the
Provider to remove the Undertaking Limit (as defined in the Performance
Undertaking) in the manner set forth in the Performance Undertaking prior to
sixty (60) days after the date of this Agreement; provided that no event
described in (i) and (ii) above shall constitute an Early Amortization Event
unless such event has a material adverse effect on the VFC Certificateholders
and such event continues unremedied until thirty (30) days after the earlier of
(x) the date any Responsible Officer of the Provider obtains knowledge of such
failure and (y) the date on which written notice of the occurrence of such
event, shall be given to the Provider by the Trustee, provided that such notice
is not effective unless given the Trustee on behalf of the holders at least 25%
of the Series 2001-VFC Invested Amount;
then, in the case of (x) any event described in Section 7.1 of the Pooling
Agreement, after the applicable grace period (if any) set forth in such Section,
automatically without any notice or action on the part of the Trustee or the
holders of the VFC Certificates, an early amortization period shall immediately
commence or (y) an event described above, after the applicable grace period (if
any) set forth in such Sections, the Agent may by written notice then given to
the Company and the Master Servicer, with a copy to the Trustee, declare that an
early amortization period has commenced as of the date of such notice with
respect to Series 2001-VFC (any such period under clause (x) or (y) above, an
"Early Amortization Period"); provided, however, that in the case of the event
described in clause (e) above, if an Early Amortization Period has not been
declared within five Business Days from the occurrence of such event, then an
Early Amortization Period shall commence automatically on the sixth Business Day
from the occurrence of such
27
event unless, (i) prior to the end of such five Business Day period, the Series
2001-VFC Allocated Receivables Amount shall no longer be less than the Series
2001-VFC Target Receivables Amount and (ii) so long as the Series 2001-VFC
Allocated Receivables Amount continues to be equal to or greater than the Series
2001-VFC Target Receivables Amount, within five Business Days from the end of
such five Business Day period, the Majority Certificateholders shall have waived
the occurrence of such event. As used herein, "Performance Undertaking" means
the Performance Undertaking by the Provider in favor of the Recipients dated as
of May 9, 2001 relating to Provider's guaranty of the Parent's obligations under
the Provider Documents (as defined in the Performance Undertaking).
ARTICLE VI
SERVICING FEE
SECTION 6.1 Servicing Compensation. A monthly servicing fee (the
"Series 2001-VFC Monthly Servicing Fee") shall be payable to the Master Servicer
on each Distribution Date for the related Settlement Period, in an amount equal
to the product of (a) the Servicing Fee and (b) a fraction the numerator of
which is the daily average Invested Amount for such Settlement Period and the
denominator of which is the daily average of the Aggregate Invested Amounts for
such Settlement Period.
ARTICLE VII
COVENANTS, REPRESENTATIONS AND WARRANTIES
SECTION 7.1 Representations and Warranties of the Company and the Master
Servicer. The Company and the Master Servicer hereby represent and warrant to
the Trustee and each of the VFC Certificateholders that each and all of their
respective representations and warranties contained in the Pooling Agreement is
true and correct as of the Issuance Date and as of each Purchase Date.
SECTION 7.2 Covenants of the Company. The Company hereby agrees that:
(a) it shall observe each and all of its respective
covenants (both affirmative and negative) contained in the Pooling Agreement;
and
(b) it shall not terminate the Pooling Agreement unless in
strict compliance with the terms of the Pooling Agreement.
SECTION 7.3 Covenants of the Master Servicer. The Master Servicer hereby
agrees that it shall observe each and all of its covenants (both affirmative and
negative) contained in the Pooling Agreement.
28
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Ratification of Pooling Agreement. As supplemented by this
Supplement, the Pooling Agreement is in all respects ratified and confirmed and
the Pooling Agreement as so supplemented by this Supplement shall be read, taken
and construed as one and the same instrument.
SECTION 8.2 Governing Law. THIS SUPPLEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 8.3 Further Assurances. Each of the Company, the Master Servicer
and the Trustee agrees, from time to time, to do and perform any and all acts
and to execute any and all further instruments required or reasonably requested
by the other more fully to effect the purposes of this Supplement and the sale
of the VFC Certificates hereunder, including, without limitation, in the case of
the Company, the execution of any financing statements or continuation
statements relating to the Receivables and the other Trust Assets for filing
under the provisions of the UCC or similar legislation of any applicable
jurisdiction.
SECTION 8.4 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Trustee or any VFC Certificateholder,
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 8 .5 Amendments. This Supplement may only be amended,
supplemented or otherwise modified from time to time if such amendment,
supplement or modification is effected in accordance with the provisions of
Section 11.1 of the Pooling Agreement.
SECTION 8.6 Notices. All notices, requests and demands to or upon any
party hereto to be effective shall be given in the manner set forth in the case
of the Company, the Master Servicer and the Trustee, in Section 10.5 of the
Pooling Agreement, and in the case of any other party, in writing (including a
confirmed transmission by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand
or three days after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when received. Any notice required or permitted to be
mailed to a VFC Certificateholder shall be given as provided in Section 4.3.
29
SECTION 8.7 Counterparts. This Supplement may be executed in any number
of counterparts and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original, and all of
which taken together shall constitute one and the same agreement.
ARTICLE IX
FINAL DISTRIBUTIONS
SECTION 9.1 Certain Distributions. (a) Not later than 12:00 p.m., New
York City time, on the Funding Change Date following the date on which the
proceeds from the disposition of the Receivables are deposited into the Series
2001-VFC Non-Principal Collection Sub-subaccount and the Series 2001-VFC
Principal Collection Sub-subaccount pursuant to Section 7.2(b) of the Pooling
Agreement, the Trustee shall distribute such amounts pursuant to Article III of
this Supplement.
(b) Notwithstanding anything to the contrary in this Supplement or
the Pooling Agreement, any distribution made pursuant to this Section shall be
deemed to be a final distribution pursuant to Section 9.3 of the Pooling
Agreement with respect to the VFC Certificates.
30
IN WITNESS WHEREOF, the Company, the Master Servicer and the
Trustee have caused this Series 2001-VFC Supplement to be duly executed by their
respective officers as of the day and year first above written.
GENERAL CABLE CAPITAL FUNDING, INC.
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer - Assistant Secretary
GENERAL CABLE INDUSTRIES, INC.
as Master Servicer
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Treasurer
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Trustee
By:
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
EXHIBIT A
TO SERIES 2001-VFC SUPPLEMENT
FORM OF SERIES 2001-VFC VARIABLE FUNDING CERTIFICATE
GENERAL CABLE 2001 MASTER TRUST
Maximum Principal Amount:
$__,000,000.00
First Distribution Date: _________________, 2001
THE SERIES 2001-VFC CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS SERIES 2001-VFC CERTIFICATE, AGREES THAT THIS SERIES
2001-VFC CERTIFICATE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY IN ACCORDANCE
WITH ANY APPLICABLE STATE SECURITIES LAWS AND (1) IN AN AMOUNT OF AT LEAST U.S.
$5,000,000 AND (2)(A) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
OR (B) TO A PERSON WHO (i) IS AN INSTITUTIONAL ACCREDITED INVESTOR, WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT, IS TAKING DELIVERY OF SUCH CERTIFICATE AND DELIVERS AN INVESTMENT LETTER TO
THE TRUSTEE IN THE FORM ATTACHED TO THE SERIES 2001-VFC SUPPLEMENT OR (ii) IS
TAKING DELIVERY OF SUCH CERTIFICATE PURSUANT TO A TRANSACTION THAT IS OTHERWISE
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AS CONFIRMED IN
AN OPINION OF COUNSEL ADDRESSED TO THE TRUSTEE AND THE COMPANY WHICH OPINION AND
COUNSEL ARE REASONABLY SATISFACTORY TO THE TRUSTEE AND THE COMPANY.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT
PLAN. AS USED HEREIN, "BENEFIT PLAN" SHALL MEAN ANY EMPLOYEE BENEFIT PLAN (AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA")) THAT IS SUBJECT TO THE
A-1
PROVISIONS OF TITLE I OF ERISA, A PLAN DESCRIBED IN SECTION 4975(E)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY. BY
ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF REPRESENTS AND
WARRANTS THAT IT IS NOT A BENEFIT PLAN. BY ACQUIRING ANY INTEREST IN THIS
CERTIFICATE, THE APPLICABLE CERTIFICATE OWNER OR OWNERS SHALL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT OR THEY ARE NOT BENEFIT PLANS.
THIS SERIES 2001-VFC CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENT OR BY ANY OTHER PERSON.
Purchasers of this VFC Certificate will be deemed to have made certain
representations and warranties set forth in the Series 2001-VFC Supplement.
This VFC Certificate evidences a fractional undivided interest in assets
of the
GENERAL CABLE 2001 MASTER TRUST
the corpus of which consists primarily of trade obligations of customers of
General Cable Industries, Inc. arising under certain accounts.
(Not an interest in or obligation of
General Cable Corporation, General Cable Capital Funding, Inc.,
General Cable Industries, Inc., or any Affiliate thereof)
This certifies that
------------------------------------
(the "Certificateholder") is the registered owner of a fractional undivided
interest in the assets of the GENERAL CABLE 2001 MASTER TRUST (the "Trust"),
pursuant to the Master Pooling and Servicing Agreement, dated as of May 9, 2001
(as the same may from time to time be amended, amended and restated,
supplemented or otherwise modified, the "Pooling and Servicing Agreement"), by
and among General Cable Capital Funding, Inc., a Delaware corporation (the
"Company"), General Cable Industries, Inc., a Delaware corporation, as master
servicer (the "Master Servicer"), and The Chase Manhattan Bank, not in its
individual capacity but solely as trustee (in such capacity, the "Trustee") for
the Trust, as supplemented by the Series 2001-VFC Supplement, dated as of May 9,
-2-
2001 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "Supplement", collectively, with the Pooling and Servicing
Agreement, the "Agreement"), by and among the Company, the Master Servicer and
the Trustee. Although a summary of certain provisions of the Agreement is set
forth below, this VFC Certificate does not purport to summarize the Agreement,
is qualified in its entirety by the terms and provisions of the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations and duties evidenced hereby and the
rights, duties and obligations of the Trustee. In the event of any conflict or
inconsistency between this VFC Certificate and the Agreement, the Agreement
shall control in all respects. A copy of the Agreement may be requested by
writing to the Trustee at The Chase Manhattan Bank, Attention: Xxxxxxxx Xxxxx.
To the extent not defined herein, the capitalized terms used herein have the
meanings ascribed to them in the Agreement.
This VFC Certificate is one of the Series 2001-VFC Certificates issued
under, and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Certificateholder, by virtue of its acceptance hereof,
assents and is bound.
The Company has entered into the Agreement, and the Series 2001-VFC
Certificates have been issued, with the intention that the Series 2001-VFC
Certificates will qualify under applicable tax law as indebtedness of the
Company. The Company and the Certificateholder, by its acceptance of this VFC
Certificate, agree to treat the Series 2001-VFC Certificates as indebtedness of
the Company for purposes of Federal, state and local income and franchise taxes
and for purposes of other taxes imposed on or measured by income. For the
purposes of this paragraph, references to Certificateholders shall include the
beneficial owners of the VFC Certificates and references to Certificates shall
include beneficial interests in Certificates.
The Trust's assets are allocated in part to the Series 2001-VFC
Certificateholders with the remainder allocated to the Certificateholders of
other Series and to the Subordinated Company Certificate.
This VFC Certificate is one of a class of Certificates entitled "General
Cable 2001 Master Trust, Series 2001-VFC Variable Funding Certificates (the "VFC
Certificates"). The VFC Certificates represent fractional undivided interests in
the assets of the Trust, including the right to receive the amounts set forth in
the Agreement, which are payable at the times set forth in the Agreement, out of
the sum of (i) the Invested Percentage of the Collections received with respect
to the Receivables and of all other funds on deposit in the Collection Account
(other than the Series Collection Subaccounts) and (ii) all other funds on
deposit in the Series 2001-VFC Collection Subaccounts and any subaccounts
thereof (the "Series 2001-VFC Certificateholders' Interest"). Concurrent with
the issuance of the VFC Certificates, the Trust will also issue a Subordinated
Company Certificate entitled "General Cable 2001 Master Trust, Series 2001-VFC
Subordinated Company Certificate" (the "Subordinated Company Certificate")
representing a fractional undivided interest in the assets of the Trust
consisting of the right to receive Collections with respect to Receivables
allocated to the Series
-3-
2001-VFC Certificateholders' Interest and not required to be distributed to or
for the benefit of the VFC Certificateholders. The Trust's assets are allocated
in part to the VFC Certificateholders, the holder of the Subordinated Company
Certificate, and to the Company as holder of the Exchangeable Company
Certificate.
Principal and interest on the VFC Certificates will be payable as and to
the extent provided in the Agreement.
Final payment of this VFC Certificate shall be made only upon
presentation and surrender of this VFC Certificate at the office specified in
the notice of final distribution delivered by the Trustee to the Series 2001-VFC
Certificateholders in accordance with the Agreement.
This VFC Certificate does not represent an obligation of, an interest in
or a guaranty by the General Cable Capital Funding, Inc., General Cable
Corporation, General Cable Industries, Inc., or any Affiliate thereof and is not
insured or guaranteed by any governmental agency or instrumentality. This
Certificate is limited in right of payment as more specifically set forth in the
Agreement.
A transfer of this VFC Certificate shall be made only as provided in the
Agreement and subject to certain limitations therein set forth.
The Certificateholder hereby agrees that, prior to the date which is one
year and one day after the date on which the principal of and all other amounts
in respect of the VFC Certificates have been repaid in full, it will not
institute against, or join any other Person in instituting against, the Company
or the Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other similar proceedings under any federal or state
bankruptcy or similar law.
Subject to the terms and conditions of the Agreement, the Company may
from time to time direct the Trustee, on behalf of the Trust, to issue one or
more new Series of Investor Certificates.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this VFC Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
THIS VFC CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAWS PRINCIPLES.
SIGNATURE PAGES FOLLOW
-4-
IN WITNESS WHEREOF, the Company has caused this VFC Certificate to be
duly executed as of the date first above written.
GENERAL CABLE CAPITAL FUNDING, INC.
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer and Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the VFC Certificates referred to in the within-mentioned
Agreement.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By:
--------------------------------------
Authorized Signatory
-5-
EXHIBIT B
TO SERIES 2001-VFC SUPPLEMENT
FORM OF SERIES 2001-VFC SUBORDINATED COMPANY CERTIFICATE
GENERAL CABLE 2001 MASTER TRUST
SERIES 2001-VFC SUBORDINATED COMPANY CERTIFICATE
DATED: May 9, 2001
THIS SUBORDINATED COMPANY CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THE SUBORDINATED COMPANY CERTIFICATE
NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION PROVISIONS.
THIS SUBORDINATED COMPANY CERTIFICATE IS NOT PERMITTED TO BE SOLD,
TRANSFERRED, ASSIGNED, EXCHANGED, PLEDGED OR OTHERWISE CONVEYED EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE MASTER POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN. THIS SUBORDINATED COMPANY CERTIFICATE IS SUBORDINATED IN RIGHT OF
PAYMENT TO THE VFC CERTIFICATES AS DESCRIBED IN THE MASTER POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This Subordinated Company Certificate represents an interest in certain
assets of the
GENERAL CABLE 2001 MASTER TRUST
the corpus of which consists primarily of trade obligations of customers of
General Cable Industries, Inc. ("GCI") arising under certain accounts.
(Not an interest in or obligation of General Cable Corporation, GCI,
General Cable Capital Funding, Inc., or any Affiliate thereof).
This certifies that General Cable Capital Funding, Inc., a Delaware
corporation ("Company"), is the registered owner of a fractional undivided
interest in the assets of the General Cable 2001 Master Trust (the "Trust") not
allocated to the Series 2001-VFC Certificateholders' Interest, pursuant to the
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Master Pooling and Servicing Agreement dated as of May 9, 2001 (as amended,
supplemented, restated or otherwise modified from time to time, the "Pooling
Agreement"), by and among the Company, General Cable Industries, Inc., as Master
Servicer, and The Chase Manhattan Bank, as trustee (the "Trustee") as
supplemented by the Series 2001-VFC Supplement, dated as of May 9, 2001 (as
amended, supplemented, restated or otherwise modified from time to time, the
"Supplement," and together with the Pooling Agreement, the "Agreement").
Although a summary of certain provisions of the Agreement is set forth below,
this Subordinated Company Certificate does not purport to summarize the
Agreement and is qualified in its entirety by reference to the Agreement;
without limiting the generality of the foregoing, reference is made to the
Agreement for information with respect to the interests, rights, benefits,
obligations, and duties evidenced hereby and the rights, duties and obligations
of the Trustee. A copy of the Agreement may be requested from the Trustee by
writing to the Trustee at The Chase Manhattan Bank, Attention: Corporate Trust
Department. Capitalized terms defined in the Agreement and used herein without
definition have the meanings ascribed to them in the Agreement.
This Subordinated Company Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
holder of this Subordinated Company Certificate by virtue of its acceptance
hereof assents and is bound.
This Subordinated Company Certificate is the Subordinated Company
Certificate entitled "Series 2001-VFC Subordinated Company Certificate" (the
"Subordinated Company Certificate") representing a fractional undivided interest
in the assets of the Trust consisting of the right to receive Collections
allocated to the Series 2001-VFC Certificateholders' Interest and not required
to be distributed to or for the benefit of the Series 2001-VFC
Certificateholders. Concurrent with the issuance of the Subordinated Company
Certificate, the Trust shall also issue Certificates entitled "General Cable
2001 Master Trust, Series 2001-1 Variable Funding Certificates (the "VFC
Certificates"). The VFC Certificates represent a fractional undivided interest
in the assets of the Trust, including the right to receive the amounts set forth
in the Agreement, which are payable at the times set forth in the Agreement, out
of the sum of (i) the Invested Percentage of the Collections and of all other
funds on deposit in the Collection Account and (ii) to the extent such interests
appear in the Supplement, all other funds on deposit in the Series Collection
Subaccount and any subaccounts thereof (the "Series 2001-VFC Certificateholders'
Interest"). The Trust's assets are allocated in part to the VFC
Certificateholders and the Subordinated Company Certificateholder with the
remainder allocated to Certificateholders of other Series, if any, and to the
Company as holder of the Exchangeable Company Certificate.
The aggregate interest represented by the Subordinated Company
Certificate at any time in the assets of the Trust shall not exceed an amount
equal to the Subordinated Company Certificate Amount at that time. The
Subordinated Company Certificate Amount on any date of determination shall be an
amount equal to the Series 2001-VFC Allocated Receivables amount on such date
minus the Series 2001-VFC Adjusted Invested Amount on such date.
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Distributions with respect to this Subordinated Company Certificate
shall be paid monthly, but only to the extent provided under the Agreement, on
each Distribution Date by the Trustee to the holder of the Subordinated Company
Certificate. Final payment of this Subordinated Company Certificate shall be
made only upon presentation and surrender of this Subordinated Company
Certificate at the office or agency specified in the notice of the final
distribution delivered by the Trustee to the holder of the Subordinated Company
Certificate in accordance with the Agreement.
This Subordinated Company Certificate does not represent an obligation
of, or an interest in, the Company, the Master Servicer or any Affiliate of
either of them.
This Certificate is not permitted to be sold, transferred, assigned,
exchanged, pledged or otherwise conveyed except in accordance with the
Agreement.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Subordinated Company
Certificate shall not be entitled to any benefit under the Agreement referred to
on the reverse side hereof, or be valid for any purpose.
THIS SUBORDINATED COMPANY CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PRINCIPLES.
SIGNATURE PAGES FOLLOW
B-3
IN WITNESS WHEREOF, the Company has caused this Subordinated Company
Certificate to be duly executed as of the date first above written.
GENERAL CABLE CAPITAL FUNDING, INC.
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer and Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Subordinated Company Certificate referred to in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By:
--------------------------------------
Authorized Signatory
B-4
EXHIBIT C
TO SERIES 2001-VFC SUPPLEMENT
FORM OF INVESTMENT LETTER
The Chase Manhattan Bank
450 West 33 rd Street
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Services - ABS
Ladies and Gentlemen:
In connection with our proposed purchase of a one or more Series
2001-VFC Certificates (the "VFC Certificates"), representing a fractional
undivided interest in the General Cable 2001 Master Trust, issued under the
Series 2001-VFC Supplement, dated as of May 9, 2001 (the "Supplement"), among
General Cable Capital Funding, Inc., a Delaware corporation, General Cable
Industries, Inc., as Master Servicer and The Chase Manhattan Bank, as Trustee,
we confirm that:
1. We understand that the VFC Certificates have not been registered
under the United States Securities Act of 1933, as amended (the "U.S.
Securities Act"), and may not be sold except as permitted in the
following sentence and in accordance with Section 2.4(b) of the
Supplement. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that such VFC
Certificates (or an interest therein) may be resold, pledged or
transferred only (i) to the Company, (ii) if such VFC Certificates are
eligible for resale pursuant to Rule 144A under the U.S. Securities Act
("Rule 144A"), to a person whom the transferor reasonably believes after
due inquiry to be a "qualified institutional buyer" as defined in Rule
144A acting for its own account (and not for the account of others) or
as a fiduciary or agent for others (which others also are "qualified
institutional buyers") to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (iii) in a sale,
pledge or other transfer made in a transaction otherwise exempt from the
registration requirements of the U.S. Securities Act, in which case (A)
the Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Trustee and the Company in writing
the facts surrounding such transfer, which certification shall be in
form and substance satisfactory to the Trustee and the Company, and (B)
the Trustee shall require a written opinion of counsel (which will not
be at the expense of the Company or the Trustee) satisfactory to the
Company and the Trustee to the effect that such transfer will not
violate the U.S. Securities Act, in each case in accordance with any
applicable securities laws of any state
C-1
of the United States. We will notify any purchaser of the VFC
Certificates (or an interest therein) from us of the above resale
restrictions, if then applicable. We further understand that in
connection with any transfer of the VFC Certificates (or interest
therein) by us that the Company and the Trustee may request, and if so
requested we will furnish, such certification and other information as
they may reasonably require to confirm that any such transfer complies
with the foregoing restrictions. We understand that no sale, pledge or
other transfer may be made to any one person for VFC Certificates (or an
interest therein) with a face amount of less than $5,000,000. Any
attempted transfer will be void ab initio and the purported transferor
will continue to be treated as the owner of the VFC Certificates for all
purposes.
2. We are a "qualified institutional buyer" as defined under Rule
144A under the U.S. Securities Act and are acquiring the VFC
Certificates (or an interest therein) for our own account (and not for
the account of others) or as a fiduciary or agent for others (which
others also are "qualified institutional buyers"). We are familiar with
Rule 144A under the U.S. Securities Act and are aware that the
transferor of the VFC Certificates (or an interest therein) and other
parties intend to rely on the statements made herein and the exemption
from the registration requirements of the U.S. Securities Act provided
by Rule 144A.
3. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Name of Purchaser)
By:
------------------------------------
Date:
C-2