EXHIBIT 10.48
EXECUTION COPY
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GENERAL CABLE CAPITAL FUNDING, INC.,
as Company
GENERAL CABLE INDUSTRIES, INC.
as Master Servicer
and
THE CHASE MANHATTAN BANK
as Trustee
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GENERAL CABLE 2001 MASTER TRUST
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SERIES 2001-1 SUPPLEMENT
to
Master Pooling and Servicing Agreement
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DATED AS OF MAY 9, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS......................................................................1
Section 1.1. Definitions...........................................................1
Section 1.2. Other Definitional Provisions........................................13
ARTICLE II DESIGNATION OF CERTIFICATES; PURCHASE AND SALE OF THE
TERM CERTIFICATES...................................................................14
Section 2.1. Designation..........................................................14
Section 2.2. The Series 2001-1 Certificates.......................................14
Section 2.3. Delivery.............................................................15
Section 2.4. Restrictions on Transfer.............................................16
Section 2.5. Application of Proceeds..............................................25
Section 2.6. Procedure for Decreasing the Invested Amount.........................25
Section 2.7. Sale of Additional Term Certificates.................................26
ARTICLE III ARTICLE III OF THE AGREEMENT..................................................27
Section 3.2. Establishment of Trust Accounts......................................27
Section 3.3. Daily Allocations. ..................................................29
Section 3.4. Determination of Interest............................................30
Section 3.5. Determination of Series 2001-1 Monthly Principal.....................32
Section 3.6. Interest Applications and Other Distributions........................33
Section 3.7 Taxes................................................................35
ARTICLE IV DISTRIBUTIONS AND REPORTS......................................................35
Section 4.1. Distributions........................................................35
Section 4.2. Statements and Notices...............................................36
Section 4.3. Notice Procedures....................................................37
ARTICLE V ADDITIONAL EARLY AMORTIZATION EVENTS............................................37
Section 5.1. Additional Early Amortization Events.................................39
ARTICLE VI SERVICING FEE..................................................................40
Section 6.1. Servicing Compensation...............................................40
ARTICLE VII COVENANTS, REPRESENTATIONS AND WARRANTIES.......................................40
Section 7.1. Representations and Warranties of the Company and the Master
Servicer.............................................................40
Section 7.2. Covenants of the Company.............................................40
Section 7.3. Covenants of the Master Servicer.....................................41
Section 7.4. Covenant of the Trustee..............................................41
ARTICLE VIII MISCELLANEOUS................................................................41
Section 8.1. Ratification of Agreement............................................41
Section 8.2. Governing Law........................................................41
Section 8.3. Further Assurances...................................................41
i
Section 8.4. No Waiver; Cumulative Remedies.......................................42
Section 8.5. Amendments...........................................................42
Section 8.6. Severability.........................................................42
Section 8.7. Notices..............................................................42
Section 8.8. Counterparts.........................................................43
Section 8.9. Limitation on Addition and Termination of Sellers....................43
ARTICLE IX FINAL DISTRIBUTIONS............................................................44
Section 9.1. Certain Distributions................................................44
SCHEDULES
Schedule 1 Trust Accounts
EXHIBITS
Exhibit A Form of Class A Certificate, Series 2001-1
Exhibit B Form of Class B Certificate, Series 2001-1
Exhibit C Form of Subordinated Company Certificate, Series 2001-1
Exhibit D Form of Daily Report
Exhibit E Form of Monthly Settlement Statement
Exhibit F-1 Form of Class B Transferee Letter
Exhibit F-2 Form of Class B Transferor Letter
Exhibit G Reserved
Exhibit H Reserved
Exhibit I - Form of Certificate for Exchange or Transfer from Temporary
Regulation S Global Certificate to Permanent Regulation S Global
Certificate
Exhibit J Form of Euroclear and Clearstream Banking Certificate
ii
SERIES 2001-1 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 Agreement (as hereinafter defined).
BACKGROUND
A. The Master Pooling and Servicing Agreement dated as of
May 9, 2001, as amended, supplemented or otherwise modified (the "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
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.
B. The Company, the Master Servicer and the Trustee wish to
supplement the Agreement as hereinafter set forth to specify the Principal Terms
of Series 2001-1.
AGREEMENT
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. (a) Unless otherwise defined herein,
capitalized terms which are used herein shall have the meanings assigned to such
terms in Section 1.1 of the Agreement. The following words and phrases shall
have the following meanings with respect to Series 2001-1:
"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 Discount Rate as of such day, divided by (ii) 360.
"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 Parent.
"Class A Additional Interest" shall have the meaning assigned in
subsection 3.4(b)(i).
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"Class A Adjusted Invested Amount" shall mean, on any date of
determination, the Class A Invested Amount minus the amount on deposit
in the Series 2001-1 Principal Collection Sub-subaccount.
"Class A Certificate" shall mean a Class A Certificate, Series
2001-1, executed by the Company and authenticated by or on behalf of the
Trustee, substantially in the form of Exhibit A.
"Class A Certificateholder" shall mean each Certificateholder of
a Class A Certificate.
"Class A Certificate Rate" shall mean, (a) in the case of the
Class A Certificates issued on the Issuance Date, with respect to (i)
the initial Accrual Period, 4.78% per annum, and (ii) any Accrual Period
thereafter, One-Month LIBOR for such Accrual Period plus 0.43% per annum
and (b) in the case of any Class A Certificates issued on any Subsequent
Issuance Date, the interest rate (including any applicable margin)
established in respect of such Class A Certificates.
"Class A Interest Distributable Amount" shall have the meaning
specified in Section 3.6(a)(i) hereof.
"Class A Initial Invested Amount" shall mean $130,000,000.
"Class A Interest Shortfall" shall have the meaning assigned in
subsection 3.4(b)(i).
"Class A Invested Amount" shall mean, with respect to any date of
determination, an amount equal to (i) the Class A Initial Invested
Amount (plus the Initial Invested Amount of any Class A Certificate
issued subsequent to the Issuance Date) minus (ii) the aggregate amount
of distributions to the Class A Certificateholders (including the
holders of any such subsequently issued Class A Certificates) made in
respect of principal on or prior to such date minus (iii) the aggregate
Series 2001-1 Allocable Charged-Off Amount applied to the Class A
Certificates on or prior to such date pursuant to subsection 3.5(b)(iii)
plus (iv) (but only to the extent of any unreimbursed reductions made
pursuant to clause (iii) above) the aggregate Series 2001-1 Allocable
Recoveries Amount applied to the Class A Certificates on or prior to
such date pursuant to subsection 3.5(c)(i).
"Class A Monthly Interest" shall have the meaning assigned in
subsection 3.4(a)(i).
"Class A 144A Global Certificate" shall mean a Class A
Certificate in global form.
"Class A Ratio" shall mean, on any date of determination with
respect to Class A
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Certificates, the greater of: (i) the sum of the Loss Reserve Ratio plus
the Dilution Reserve Ratio and (ii) the Minimum Ratio, in each case
applicable to Class A Certificates.
"Class B Additional Interest" shall have the meaning assigned in
subsection 3.4(b)(ii).
"Class B Adjusted Invested Amount" shall mean, on any date of
determination, the Class B Invested Amount minus the excess, if any, of
the amount on deposit on such date in the Series 2001-1 Principal
Collection Sub-subaccount over the Class A Invested Amount.
"Class B Certificate" shall mean a Class B Certificate, Series
2001-1, executed by the Company and authenticated by or on behalf of the
Trustee, substantially in the form of Exhibit B.
"Class B Certificateholder" shall mean each Certificateholder of
a Class B Certificate.
"Class B Certificate Rate" shall mean, (a) in the case of the
Class B Certificates issued on the Issuance Date, with respect to (i)
the initial Accrual Period, 6.10% per annum, and (ii) any Accrual Period
thereafter, One-Month LIBOR for such Accrual Period plus 1.75% per annum
and (b) in the case of any Class B Certificates issued on any Subsequent
Issuance Date, the interest rate (including any applicable margin)
established in respect of such Class B Certificates.
"Class B Initial Invested Amount" shall mean $15,000,000.
"Class B Interest Shortfall" shall have the meaning assigned in
subsection 3.4(b)(ii).
"Class B Interest Distributable Amount" shall have the meaning
specified in 3.6(a)(ii) hereof.
"Class B Invested Amount" shall mean, with respect to any date of
determination, an amount equal to (i) the Class B Initial Invested
Amount (plus the Initial Invested Amount of any Class B Certificates
issued subsequent to the Issuance Date) minus (ii) the aggregate amount
of distributions to the Class B Certificateholders (including the
holders of any such subsequently issued Class B Certificates) made in
respect of principal on or prior to such date minus (iii) the aggregate
Series 2001-1 Allocable Charged-Off Amount applied to the Class B
Certificates on or prior to such date pursuant to subsection 3.5(b)(ii)
plus (iv) (but only to the extent of any unreimbursed reductions made
pursuant to clause (iii) above) the aggregate Series 2001-1 Allocable
Recoveries Amount applied to the Class B Certificates on or prior to
such date pursuant to subsection 3.5(c)(ii).
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"Class B Monthly Interest" shall have the meaning assigned in
subsection 3.4(a)(ii).
"Class B Ratio" shall mean, on any date of determination with
respect to Class B Certificates, the greater of: (i) the sum of the Loss
Reserve Ratio plus the Dilution Reserve Ratio and (ii) the Minimum
Ratio, in each case applicable to Class B Certificates.
"Controlling Class" means the Class A Certificates so long as the
Class A Certificates are outstanding, and thereafter, the Class B
Certificates so long as the Class B Certificates are outstanding.
"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) aggregate Principal Amount of
Receivables originated by the Sellers and purchased by the Company for
the three Settlement Periods immediately preceding such earlier
Settlement Report Date.
"Depository" shall mean The Depository Trust Company, the nominee
of which is Cede & Co., or any successor thereto.
"Depository Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
"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 the SQCs (Special
Quantity Considerations) 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.
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"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 for the
Class A and Class B Certificates, as the case may be, as follows:
DRR = [(a * b) + [(c-b) * (c/b)]] * d +[(SQCR * e)]
Where:
DRR = Dilution Reserve Ratio;
a = with respect to Class A Certificates, 2.5, with respect
to Class B Certificates, 1.5;
b = the average of the Dilution Ratio during the period
of twelve consecutive Settlement Periods ending prior
to such earlier Settlement Report Date;
c = the highest Dilution Ratio for any Settlement Period
during the period of twelve consecutive Settlement
Periods ending prior to such earlier Settlement Report
Date;
d = the Dilution Horizon Factor;
e = 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; and
SQCR = 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.
"Discount Rate" shall mean, as of any date of determination, the
sum of (a) the weighted average Class A Certificate Rate and Class B
Certificate Rate with respect to the outstanding Class A and Class B
Certificates, respectively, as of the end of the Settlement Period
immediately preceding the most recent Settlement Report Date and (b) an
amount equal to (i) the aggregate amount of fees and expenses (other
than the Servicing Fee and Program Costs) accrued with respect to the
outstanding Term Certificates during the Settlement Period immediately
preceding the most recent Settlement Report Date divided by (ii) the
average daily Series 2001-1 Invested Amount during such Settlement
Period.
"Distribution Compliance Period" shall have the meaning set forth
in Rule 902 of Regulation S.
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"Early Amortization Event" shall have the meanings assigned in
Section 5.1 of this Supplement and Section 7.1 of the Agreement.
"Early Amortization Period" shall have the meaning assigned in
Section 5.1 of this Supplement and Section 7.1 of the Agreement.
"ERISA Entity" shall mean (i) an "employee benefit plan" (as
defined in Section 3(3) of ERISA) or a plan which is subject to Title I
of ERISA, including, without limitation, a governmental plan which is
subject to any federal, state or local law that is substantially similar
to the provisions of Section 406 of ERISA or Section 4975 of the
Internal Revenue Code, (ii) any plan subject to Section 4975 of the
Internal Revenue Code, or (iii) any other entity that is a "benefit plan
investor" within the meaning of Department of Labor regulation Section
2510.3-101(f)(2).
"Initial Issuance Date" shall mean May 9, 2001.
"Initial Purchasers" shall mean Banc One Capital Markets, Inc.
and Chase Securities Inc., who are purchasing the Term Certificates on
the Initial Issuance Date pursuant to the Purchase Agreement.
"Invested Percentage" shall mean, with respect to any Business
Day (i) during the Series 2001-1 Revolving Period, the percentage
equivalent of a fraction, the numerator of which is the Series 2001-1
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 2001-1 Amortization Period, the percentage equivalent
of a fraction, the numerator of which is the Series 2001-1 Allocated
Receivables Amount as of the end of the last Business Day of the Series
2001-1 Revolving Period (provided that if during the Series 2001-1
Amortization Period, a period other than the revolving period of any
other Outstanding Series ends then, the numerator shall be the Series
2001-1 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 the Initial Issuance Date and any
Subsequent Issuance Date.
"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 for the
Class A or the Class B Certificates, as the case may be, as follows:
6
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 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 = with respect to Class A Certificates, 2.5, with
respect to Class B Certificates, 1.5.
"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 for Class A or
Class B Certificates, as the case may be, as follows:
MR = (a * b) + c
Where:
MR = Minimum Ratio;
a = the average of the Dilution Ratio during the period
of the twelve consecutive Settlement Periods ending
prior to such earlier Settlement Report Date;
b = the Dilution Horizon Factor; and
c = with respect to the Class A Certificates, 22.5%,
with respect to the Class B Certificates, 14.5%.
"Monthly Expense Amount" shall mean, for each Business Day during
a
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Settlement Period, the sum of (i) the Series 2001-1 Interest
Distributable Amount due and payable on the related Distribution Date or
if such amount is not yet determinable, a good faith estimate by the
Master Servicer, but in no event less than the Series 2001-1 Interest
Distributable Amount for the Distribution Date for the Settlement Period
immediately preceding such Settlement Period, (ii) the portion of the
Servicing Fees due and payable on the related Distribution Date pursuant
to Section 3.6(b)(i) and (iii) all Program Costs due and payable on the
related Distribution Date pursuant to Section 3.6(b)(i).
"Non-U.S. Certificate" shall have the meaning assigned in
subsection 2.4(h).
"Offering Memorandum" shall mean the final offering memorandum
relating to the Term Certificates dated May 4, 2001, including any
exhibits thereto, and each as amended or supplemented.
"One-Month LIBOR" shall mean for any Accrual Period after the
initial Accrual Period, the rate per annum, as determined by the
Trustee, 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 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, 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 in the interbank eurodollar market
for delivery on the first day of such Accrual 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 or 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 Repurchase Percentage" shall mean 10% of the Series
2001-1 Initial Invested Amount.
"Other Trust Assets" shall have the meaning assigned in
subsection 5.1(i).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Permanent Regulation S Global Certificate" shall have the
meaning assigned in subsection 2.4(g).
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"Program Costs" shall mean, for any Business Day, 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 Term Certificates) on such Business Day and (ii) a
fraction, the numerator of which is the Series 2001-1 Invested Amount on
such Business Day and the denominator of which is the Aggregate Invested
Amount on such Business Day, and (b) all unpaid fees and expenses due
and payable to Rating Agencies rating the Term Certificates; provided,
however, that the amount of Program Costs accrued for and paid in any
calendar year shall not exceed $100,000 in the aggregate in any fiscal
year of the Master Servicer.
"PTP" shall have the meaning assigned in subsection 2.4(e).
"Purchase Agreement" shall mean the agreement to be entered into
on the Issuance Date among the Company, Parent and the Initial
Purchasers pursuant to which the Company agrees to sell, and such
Initial Purchasers agree to purchase, the principal amounts and Class of
Term Certificates set forth therein.
"Qualified Institutional Buyer" has the meaning ascribed to such
term in Rule 144A under the Securities Act.
"Rating Agency" shall mean S&P and/or Moody's, as the context may
require.
"Record Date" shall mean, with respect to any Distribution Date,
the last day of each month.
"Reduction" shall have the meaning assigned in subsection 2.6.
"Reduction Amount" shall have the meaning assigned in subsection
2.6.
"Reduction Threshold" shall mean, at any date of determination,
$30,000,000.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Certificate" shall have the meaning assigned in
subsection 2.4(f).
"Regulation S Global Certificate" shall mean the Temporary
Regulation S Global Certificate and/or the Permanent Regulation S Global
Certificate, as the context may require.
"Release Date" shall have the meaning assigned in subsection
2.4(f).
"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
9
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 Revolving Termination Date" shall mean the last day of
the Settlement Period ending April 2006.
"Series 2001-1" shall mean Series 2001-1, the Principal Terms of
which are set forth in this Supplement.
"Series 2001-1 Accrued Interest Sub-subaccount" shall have the
meaning assigned in subsection 3.2(a)(ii).
"Series 2001-1 Adjusted Invested Amount" shall mean, as of any
date of determination, (i) the Series 2001-1 Invested Amount on such
date, minus (ii) the amount on deposit in the Series 2001-1 Principal
Collection Sub-subaccount on such date.
"Series 2001-1 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 2001-1.
"Series 2001-1 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 2001-1.
"Series 2001-1 Allocated Receivables Amount" shall mean, on any
date of determination, the lower of (i) the Series 2001-1 Target
Receivables Amount on such date and (ii)(A) the Aggregate Receivables
Amount on such date times (B) the percentage equivalent of a fraction
the numerator of which is the Series 2001-1 Target Receivables Amount on
such day and the denominator of which is the Aggregate Target
Receivables Amount on such date.
"Series 2001-1 Amortization Period" shall mean the period
commencing on the earlier to occur of (i) the date on which an Early
Amortization Period is declared to commence or automatically commences
and (ii) the first day after the Scheduled Revolving Termination Date
and ending on the earlier of: (x) the date when the Series 2001-1
Invested Amount shall have been reduced to zero and all accrued interest
on the Term Certificates shall have been paid in full and (y) the Series
2001-1 Termination Date.
"Series 2001-1 Certificateholders' Interest" shall have the
meaning assigned in subsection 2.2(a).
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"Series 2001-1 Certificates" shall mean, collectively, those
Certificates designated as the Class A Certificates, the Class B
Certificates and the Series 2001-1 Subordinated Certificate.
"Series 2001-1 Collection Subaccount" shall have the meaning
assigned in subsection 3.2(a)(i).
"Series 2001-1 Initial Invested Amount" shall mean, the sum of
the Class A Initial Invested Amount and the Class B Initial Invested
Amount.
"Series 2001-1 Invested Amount" shall mean, the sum of the Class
A Invested Amount and the Class B Invested Amount.
"Series 2001-1 Interest Distributable Amount" shall have the
meaning specified in Section 3.6(a)(ii) hereof.
"Series 2001-1 Monthly Interest" shall mean, the sum of the Class
A Monthly Interest and the Class B Monthly Interest.
"Series 2001-1 Monthly Principal Payment" shall have the meaning
assigned in Section 3.5.
"Series 2001-1 Monthly Servicing Fee" shall have the meaning
assigned in Section 6.1.
"Series 2001-1 Non-Principal Collection Sub-subaccount" shall
have the meaning assigned in subsection 3.2(a)(ii).
"Series 2001-1 Principal Collection Sub-subaccount" shall have
the meaning assigned in subsection 3.2(a)(ii).
"Series 2001-1 Required Reserves" shall mean (x) on any date of
determination during the Series 2001-1 Revolving Period, an amount equal
to the sum of:
(a) an amount equal to the greater of (i) the
difference between (A) the product of (1) the Class A Adjusted
Invested Amount on such day (after giving effect to any increase
or decrease thereof on such day) and (2) a fraction, the
numerator of which is the Class A Ratio, and the denominator of
which is one minus the Class A Ratio, and (B) the Class B
Adjusted Invested Amount, and (ii) the product of (1) the Series
2001-1 Adjusted Invested Amount on such day (after giving effect
to any increase or decrease thereof on such day) and (2) a
fraction, the numerator of which is the Class B Ratio and the
denominator of which is one minus the Class B Ratio;
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(b) the product of (i) the Series 2001-1 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 Class A 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 Series 2001-1 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 Class A Ratio;
and (y) on any date of determination during the Series 2001-1
Amortization Period, an amount equal to the Series 2001-1 Required
Reserves on the last Business Day of the Series 2001-1 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)(iii).
"Series 2001-1 Revolving Period" shall mean the period commencing
on the Issuance Date and terminating on the earliest to occur of the
close of business on (i) the day immediately preceding the date on which
an Early Amortization Period is declared to commence or automatically
commences and (ii) the Scheduled Revolving Termination Date.
"Series 2001-1 Subordinated Certificate" shall mean the
Subordinated Company Certificate, Series 2001-1, executed by the Company
and authenticated by or on behalf of the Trustee, substantially in the
form of Exhibit C.
"Series 2001-1 Target Receivables Amount" shall mean, on any date
of determination, the sum of (i) the Series 2001-1 Adjusted Invested
Amount on such date and (ii) the Series 2001-1 Required Reserves on such
date.
"Series 2001-1 Termination Date" shall mean the Distribution Date
that occurs in April 2007.
"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 earlier Settlement Report Date divided by (ii) 360.
"Special Distribution Date" shall have the meaning assigned in
subsection 2.6.
"SQC" 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.
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"Subordinated Interest" shall have the meaning specified in
subsection 2.2(b).
"Subordinated Company Certificate" means the Series 2001-1
Subordinated Certificate.
"Subsequent Issuance Date" shall mean each Distribution Date, if
any, on which the Trustee issues additional Class A or Class B
Certificates pursuant to Section 2.7.
"Temporary Regulation S Global Certificate" shall have the
meaning specified in subsection 2.4(b)(v).
"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.
"Term Certificateholders" shall mean, collectively, the Class A
Certificateholders and Class B Certificateholders.
"Term Certificates" shall mean, collectively, those Certificates
designated as the Class A Certificates and Class B Certificates.
"Trust Accounts" shall have the meaning assigned in subsection
3.2(a)(iii).
"VFC" shall mean the Class A Certificates, Series 2001-VFC, and
the Subordinated Company Certificate, Series 2001-VFC, each issued
pursuant to the VFC Supplement.
"VFC Supplement" shall mean the Supplement relating to the VFC.
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Supplement or the 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
13
when used in this Supplement shall refer to this Supplement as a whole and not
to any particular provision of this Supplement; and Section, subsection,
Schedule and Exhibit references contained in this Supplement are references to
Sections, subsections, 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 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 such Receivables.
(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.
ARTICLE II
DESIGNATION OF CERTIFICATES;
PURCHASE AND SALE OF THE TERM CERTIFICATES
SECTION 2.1. DESIGNATION. The Certificates created and authorized
pursuant to the Agreement and this Supplement (the "Series 2001-1 Certificates")
shall be divided into three classes, which shall be designated respectively as
(a) the "Class A Certificates, Series 2001-1," (b) the "Class B Certificates,
Series 2001-1" and (c) "Subordinated Company Certificate, Series 2001-1".
SECTION 2.2. THE SERIES 2001-1 CERTIFICATES.
(a) The Term Certificates shall represent fractional undivided
interests in the Trust, including the right to receive distributions from: (i)
the Invested Percentage of 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- 1 Collection Subaccounts and any subaccounts thereof (collectively,
the "Series 2001-1 Certificateholders' Interest").
(b) The Series 2001-1 Subordinated Certificate shall represent
a fractional
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undivided interest in the Trust, including the right to receive Collections with
respect to the Receivables allocated to the Series 2001-1 Certificateholders'
Interest and not required to be distributed to or for the benefit of the Term
Certificateholders (the "Subordinated Interest"). The Exchangeable Company
Certificate and any other Series of Investor Certificates outstanding shall
represent the interest in the remainder of the Trust not allocated to the Series
2001-1 Certificateholders' Interest or the Subordinated Interest.
(c) The Term Certificates shall be issued in registered form in
substantially the forms of Exhibits A and B, respectively; provided, that in the
case of any additional Term Certificates issued pursuant to Section 2.7, such
Certificates may be modified to reflect that they are being issued on a
Subsequent Issuance Date, rather than on the Initial Issuance Date. The Series
2001-1 Subordinated Certificate shall be issued in registered form in
substantially the form of Exhibit C. The Series 2001-1 Certificates 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 Agreement.
SECTION 2.3. DELIVERY.
(a) On the Initial 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 Agreement to duly authenticate, and the Trustee, upon receiving such
direction, shall so authenticate (i) subject to the provisions set forth in
subsections 2.3(b) and (c), the Class A and Class B Certificates in such names
and such denominations and deliver such Certificates in accordance with the
Company's written directions, and (ii) a Series 2001-1 Subordinated Certificate
in accordance with such directions of the Company and deliver such Series 2001-1
Subordinated Certificate to the Company as the holder thereof. Class A
Certificates shall be issued in minimum denominations of $250,000 and in
integral multiples of $50,000 in excess thereof. Class B Certificates shall be
issued in minimum denominations of $500,000 and in integral multiples of
$100,000 in excess thereof.
(b) Except with respect to any Class A Certificates purchased
on an Issuance Date by an entity described in 2.4(a)(ii), which will be issued
in the form of Definitive Certificates, the Class A Certificates initially shall
be issued in the form of one or more global Certificates, representing the
Book-Entry Certificates, to be delivered to the Depository. Except as provided
in Section 5.13 of the Agreement or Section 2.4 of this Supplement, such
Book-Entry Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration of such Book-Entry
Certificates may not be transferred by the Trustee except to a successor to the
Depository; (ii) ownership and transfers of registration of such Book-Entry
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository and by Section 2.4; (iii) the Depository may
collect its usual and customary fees, charges and expenses from its Depository
Participants; (iv) the Trustee shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of such
Book-Entry Certificateholders of such Book-Entry Certificates for purposes of
exercising the rights of such Book-Entry Certificateholders under the Agreement
and
15
this Supplement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Book-Entry Certificateholders; and (v) the Trustee may
conclusively rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect participating
firms and Persons shown on the books of such indirect participating firms as
direct or indirect Book-Entry Certificateholders.
All transfers by Book-Entry Certificateholders of interests in
Class A Certificates shall be made in accordance with the procedures established
by the Depository Participant or brokerage firm representing such Book-Entry
Certificateholders, and, notwithstanding any other provision herein to the
contrary, the Trustee shall have no responsibility with respect to any such
transfers (except as set forth in subsection 2.4(d) below). Each Depository
Participant shall only transfer Term Certificates of Book-Entry
Certificateholders it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures and in accordance
with applicable law.
SECTION 2.4. RESTRICTIONS ON TRANSFER.
(a) On the Initial Issuance Date, the Company shall sell the
Term Certificates to the Initial Purchasers pursuant to the Purchase Agreement.
Thereafter, the Term Certificates may not be transferred except as follows:
(i) with respect to Class A Certificates evidenced by
Book-Entry Certificates, (A) to Qualified Institutional Buyers (including
foreign Qualified Institutional Buyers) in reliance on the exemption from the
registration requirements of the Securities Act provided by Rule 144A
thereunder, or (B) in the case of Class A Certificates, in an offshore
transaction in accordance with Rule 903 or Rule 904 of Regulation S, in the form
of beneficial interests in the applicable Regulation S Global Certificate; and
(ii) with respect to Term Certificates evidenced by
Definitive Certificates, to Qualified Institutional Buyers (including, except
with respect to Class B Certificates, foreign Qualified Institutional Buyers) in
reliance on the exemption from the registration requirements of the Securities
Act provided by Rule 144A thereunder.
The Trustee shall have no obligations or duties with respect to
determining whether any transfers of the Certificates are made in accordance
with the Securities Act or any other Requirements of Law. With respect to
Definitive Certificates, the Trustee shall enforce such transfer restrictions as
are set forth in the Agreement and this Supplement.
(b) Each purchaser (other than the Initial Purchasers) of the
Term Certificates (including, without limitation, any purchaser of an interest
in the Book-Entry Certificates) will be deemed to have represented and agreed as
follows:
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(i) It is (A) a Qualified Institutional Buyer as
defined in Rule 144A and is acquiring the Term Certificates for its own
institutional account or for the account or accounts of a Qualified
Institutional Buyer, or (B) if purchasing Class A Certificates, purchasing Class
A Certificates in an offshore transaction in accordance with Rule 903 or Rule
904 of Regulation S under the Securities Act;
(ii) It is purchasing Class A Certificates in an amount
of at least U.S. $250,000 or Class B Certificates in an amount of at least U.S.
$500,000 and it understands that such Certificates may be resold, pledged or
otherwise transferred only in an amount of at least U.S. $250,000 (in the case
of Class A Certificates) or U.S. $500,000 (in the case of Class B Certificates).
(iii) (1) it is not an ERISA Entity and it is not
acquiring or holding any such Certificates, directly or indirectly, for or on
behalf of an ERISA Entity, (2) if it is purchasing Class B Certificates, it is
not, for federal income tax purposes, a partnership, trust, estate or "S
corporation" (as defined in the Internal Revenue Code) or a "disregarded entity"
the beneficial owner of which is any of the foregoing and (3) if it is
purchasing Class B Certificates, it is a United States person (within the
meaning of section 7701(a)(30) of the Internal Revenue Code);
(iv) It understands that the Term Certificates are being
transferred to it in a transaction not involving any public offering within the
meaning of the Securities Act, and that, if in the future it decides to resell,
pledge or otherwise transfer any Term Certificates, such Term Certificates may
be resold, pledged or transferred only (A) in a transaction meeting the
requirements of Rule 144A to a person who the seller reasonably believes is a
Qualified Institutional Buyer that purchases for its own account or for the
account or accounts of a Qualified Institutional Buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A, or
(B) with respect to the Class A Certificates, in accordance with Regulation S;
(v) If it is acquiring a Class A Certificate or any
interest or participation therein in an "offshore transaction" (as defined in
Regulation S), it acknowledges that such Class A Certificates initially will be
represented by a global Class A Certificate (the "Temporary Regulation S Global
Certificate") and that, for so long as required by Regulation S, transfers
thereof or any interest or participation therein are restricted as provided in
this Supplement;
(vi) It understands that each Term Certificate will bear
a legend substantially to the following effect:
For Book-Entry Certificates Only: "UNLESS THIS GLOBAL CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN
17
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
For Book Entry 144A Certificates Only: INTERESTS IN THIS GLOBAL
CERTIFICATE MAY ONLY BE HELD BY QUALIFIED INSTITUTIONAL BUYERS (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933, AS AMENDED).
For Regulation S Temporary Certificates Only: THIS GLOBAL CERTIFICATE IS
A TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
NEITHER THIS TEMPORARY GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING
AGREEMENT AND THE SERIES 2001-1 SUPPLEMENT REFERRED TO BELOW. NO
BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING
AGREEMENT AND THE SERIES 2001-1 SUPPLEMENT.
For Class B Certificates Only: THIS CLASS B CERTIFICATE MAY NOT BE SOLD,
ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED (ANY OF THE FOREGOING, A
"TRANSFER") UNLESS THE TRANSFEROR AND TRANSFEREE THEREOF DELIVER
LETTERS, IN THE FORMS ATTACHED TO THE SERIES 2001-1 SUPPLEMENT, TO THE
EFFECT THAT (i) IN THE CASE OF THE TRANSFEROR, SUCH TRANSFEROR IS
TRANSFERRING SUCH CLASS B CERTIFICATES TO SUCH TRANSFEREE, (ii) IN THE
CASE OF THE TRANSFEREE, (A) SUCH TRANSFEREE IS ACQUIRING SUCH CLASS B
CERTIFICATES FOR ITS OWN ACCOUNT, IS THE SOLE BENEFICIAL OWNER OF SUCH
CLASS B CERTIFICATES AND WILL REMAIN THE SOLE BENEFICIAL OWNER OF SUCH
CLASS B CERTIFICATES UNTIL SUCH CLASS B CERTIFICATES ARE TRANSFERRED AS
PROVIDED IN THE SERIES 2001-1 SUPPLEMENT, (B) SUCH TRANSFEREE IS NOT,
FOR FEDERAL INCOME TAX PURPOSES, A TRUST, ESTATE, PARTNERSHIP OR "S
CORPORATION" (AS DEFINED IN THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "INTERNAL REVENUE CODE")) OR A "DISREGARDED ENTITY" THE
BENEFICIAL OWNER OF WHICH IS ANY OF THE FOREGOING, (C) SUCH TRANSFEREE
IS A UNITED STATES PERSON (WITHIN THE MEANING OF SECTION 7701(a)(30) OF
THE INTERNAL REVENUE CODE), (D) EACH
18
TRANSFEREE AGREES TO TREAT SUCH CLASS B CERTIFICATES FOR FEDERAL, STATE
AND LOCAL INCOME AND FRANCHISE TAX PURPOSES AS INDEBTEDNESS OF THE
COMPANY AND (E) SUCH TRANSFEREE WILL NOT GRANT A PARTICIPATION IN OR
OTHERWISE SIMILARLY SUBDIVIDE ITS BENEFICIAL INTEREST IN SUCH CLASS B
CERTIFICATES AND (iii) IN THE CASE OF THE TRANSFEROR AND THE TRANSFEREE,
SUCH CLASS B CERTIFICATES HAVE NOT BEEN TRANSFERRED ON OR THROUGH AN
"ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING OF SECTION 7704(b) OF
THE INTERNAL REVENUE CODE) AND SUCH TRANSFER OTHERWISE CONFORMS TO THE
REQUIREMENTS SET FORTH HEREIN AND IN THE SERIES 2001-1 SUPPLEMENT.
FURTHER, NO TRANSFER OF A CLASS B CERTIFICATE SHALL BE EFFECTIVE IF,
WITHIN FIVE BUSINESS DAYS OF ITS RECEIPT OF THE CLASS B TRANSFEROR AND
TRANSFEREE LETTERS, THE TRANSFER AGENT AND REGISTRAR (AS DIRECTED BY THE
COMPANY) NOTIFIES THE PURPORTED TRANSFEROR AND TRANSFEREE OF ITS REFUSAL
TO RECORD SUCH TRANSFER IN ACCORDANCE WITH THE FOLLOWING SENTENCE. IF,
WITHIN SUCH FIVE BUSINESS DAY PERIOD, THE COMPANY NOTIFIES THE TRANSFER
AGENT AND REGISTRAR THAT THE COMPANY EITHER KNOWS OR HAS A REASONABLE
GOOD FAITH BELIEF THAT ANY REPRESENTATION MADE IN EITHER SUCH LETTER WAS
UNTRUE OR INACCURATE AS OF THE DATE MADE, THE TRANSFER AGENT AND
REGISTRAR WILL REFUSE TO RECORD SUCH TRANSFER AND WILL IMMEDIATELY
NOTIFY THE PURPORTED TRANSFEROR AND TRANSFEREE OF SUCH REFUSAL. IN
ADDITION, (i) THE CLASS B CERTIFICATES MAY NOT BE TRANSFERRED WITHOUT
THE PRIOR WRITTEN CONSENT OF THE COMPANY, WHICH CONSENT WILL NOT BE
WITHHELD UNLESS THE COMPANY OBTAINS AN OPINION OF OUTSIDE COUNSEL TO THE
EFFECT THAT, IF THE CLASS B CERTIFICATES WERE CHARACTERIZED AS EQUITY
INTERESTS IN A PARTNERSHIP, THERE EXISTS A SIGNIFICANT RISK THAT SUCH
TRANSFER WOULD RESULT IN SUCH PARTNERSHIP BEING TREATED AS A PUBLICLY
TRADED PARTNERSHIP TAXABLE AS A CORPORATION (A "PTP") AND (ii) THE
COMPANY MAY, BASED UPON AN OPINION OF OUTSIDE COUNSEL, REQUIRE AS A
CONDITION TO ANY TRANSFER OF A CLASS B CERTIFICATE, SUCH LETTERS FROM
THE TRANSFEROR AND/OR TRANSFEREE OF A CLASS B CERTIFICATE REGARDING THE
CIRCUMSTANCES OF SUCH TRANSFER AS SUCH COUNSEL BELIEVES REASONABLY
NECESSARY TO INSURE THAT, IF THE CLASS B CERTIFICATES WERE CHARACTERIZED
AS EQUITY INTERESTS IN A PARTNERSHIP, SUCH PARTNERSHIP WOULD NOT BE
TREATED AS A PTP.
THE SECURITIES ACT LEGEND
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
19
SECURITIES LAWS OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS TERM
CERTIFICATE, AGREES THAT SUCH TERM CERTIFICATE MAY BE RESOLD, PLEDGED OR
TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS, AND (1) IN AN AMOUNT OF AT LEAST $250,000, IF THIS TERM
CERTIFICATE IS A CLASS A CERTIFICATE AND $500,000 IF IT IS A CLASS B
CERTIFICATE AND (2)(A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE ACT ("RULE 144A"), TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(INCLUDING, WITH RESPECT TO CLASS A CERTIFICATES, A FOREIGN QUALIFIED
INSTITUTIONAL BUYER) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OR ACCOUNTS OF A QUALIFIED INSTITUTIONAL BUYER (INCLUDING, WITH
RESPECT TO CLASS A CERTIFICATES, A FOREIGN 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) WITH RESPECT TO CLASS A
CERTIFICATES, TO NON-US PERSONS IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE βββ ββ ββββββββββ β, ββ THE FORM OF BENEFICIAL
INTERESTS IN THE APPLICABLE REGULATION S GLOBAL CERTIFICATE.
THIS TERM CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
ERISA LEGEND
EACH PURCHASER AND SUBSEQUENT TRANSFEREE OF THIS CERTIFICATE (INCLUDING
ANY PURCHASER OF AN INTEREST IN A BOOK-ENTRY CERTIFICATE) WILL BE DEEMED
TO REPRESENT AND WARRANT ON EACH DATE FROM THE DATE ON WHICH THE
PURCHASER ACQUIRES SUCH INTEREST THROUGH AND INCLUDING THE DATE ON WHICH
THE PURCHASER DISPOSES OF SUCH INTEREST, THAT IT IS NOT AND WILL NOT BE
(1) AN EMPLOYEE BENEFIT PLAN (INCLUDING A GOVERNMENTAL PLAN WHICH IS
SUBJECT TO ANY STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE
PROVISIONS OF SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED ("INTERNAL REVENUE CODE")), RETIREMENT
ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR βββββ PLAN WHICH PLAN IS
SUBJECT TO EITHER TITLE I OF ERISA, OR SECTION 4975 OF THE INTERNAL
REVENUE CODE, OR (2) ANY ENTITY WHO IS A BENEFIT PLAN INVESTOR AS
DEFINED IN DEPARTMENT OF LABOR REG. Section 2510.3-101(f)(2) (INCLUDING
A GOVERNMENTAL PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF
20
SECTION 406 OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE).
In addition, any Class B Certificates will contain the following
additional legend:
THE CLASS B CERTIFICATES ARE SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A CERTIFICATES AS PROVIDED IN THE POOLING AGREEMENT AND THE SERIES
2001-1 SUPPLEMENT.
(c) For so long as any Term Certificate bears the Securities
Act Legend, the Transfer Agent and Registrar shall not permit the transfer of
such Term Certificates unless such transfer complies with the terms of such
legend and, in the case of a transfer to a Person other than a Qualified
Institutional Buyer upon delivery of an Opinion of Counsel, satisfactory to the
Trustee and the Company, to the effect that the transferee is taking delivery of
the Term Certificates in a transaction that is otherwise exempt from the
registration requirements of the Securities Act.
(d) In addition, the Class B Certificates may not be sold,
assigned, pledged or otherwise transferred (other than by the Initial
Purchasers) (and the Transfer Agent and Registrar shall not record any sale,
assignment, pledge or other transfer) unless the transferor and transferee
thereof first deliver to the Company, the Trustee and the Transfer Agent and
Registrar transfer letters in the forms attached to this Supplement as Exhibit
F-1 and Exhibit F-2, respectively.
(e) In addition, (i) the Class B Certificates may not be sold,
assigned, pledged or otherwise transferred, and the Transfer Agent and Registrar
shall not record any sale, assignment, pledge or other transfer, without the
prior written consent of the Company, which consent will not be withheld unless
the Company obtains an opinion of outside counsel to the effect that, if the
Class B Certificates were characterized as equity interests in a partnership,
there exists a significant risk that such sale, assignment, pledge or other
transfer would result in such partnership being treated as a publicly traded
partnership taxable as a corporation (a "PTP") and (ii) the Company may, based
upon an opinion of outside counsel, require as a condition to any sale,
assignment, pledge or other transfer of a Class B Certificate, such letters from
the transferor and/or transferee of such Class B Certificate regarding the
circumstances of such sale, assignment, pledge or other transfer as such counsel
believes reasonably necessary to insure that, if the Class B Certificates were
characterized as equity interests in a partnership, such partnership would not
be treated as a PTP.
(f) Holders of a beneficial interest in Class A Certificates
sold in reliance on Regulation S as Temporary Regulation S Global Certificates
are prohibited from receiving distributions or from exchanging beneficial
interests in such Temporary Regulation S Global Certificates for a beneficial
interest in a Permanent Regulation S Global Certificate until the later of (i)
the expiration of the Distribution Compliance Period (the "Release Date") and
(ii) the furnishing of a certificate, substantially in the form of Exhibit I
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attached hereto, certifying that the beneficial owner of the Temporary
Regulation S Global Certificate is a non-United States Person (a "Regulation S
Certificate") as provided in paragraph (g) below.
(g) Class A Certificates issued in reliance on Regulation S
initially will be in the form of a Temporary Regulation S Global Certificate.
Any interest in a Class A Certificate evidenced by the Temporary Regulation S
Global Certificate is exchangeable for an interest in a Term Certificate in
fully registered, global form, without interest coupons, authenticated and
delivered (the "Permanent Regulation S Global Certificate") upon the later of
(i) the Release Date and (ii) the furnishing of a Regulation S Certificate.
(h) (i) On or prior to the Release Date, each Beneficial
Owner of a Temporary Regulation S Global Certificate shall deliver to Euroclear
or Clearstream Banking (as applicable) a Regulation S Certificate; provided,
however, that any Beneficial Owner of a Temporary Regulation S Global
Certificate on the Release Date or on any payment date that has previously
delivered a Regulation S Certificate hereunder shall not be required to deliver
any subsequent Regulation S Certificate (unless the certificate previously
delivered is no longer true as of such subsequent date, in which case such
Beneficial Owner shall promptly notify Euroclear or Clearstream Banking, as
applicable, thereof and shall deliver an updated Regulation S Certificate).
Euroclear and/or Clearstream Banking, as applicable, shall deliver to the Paying
Agent a certificate substantially in the form of Exhibit J (a "Non-U.S.
Certificate") attached hereto promptly upon the receipt of each such Regulation
S Certificate, and no such Beneficial Owner (or transferee from such Beneficial
Owner) shall be entitled to receive an interest in a Permanent Regulation S
Global Certificate or any payment of principal of or interest on or any other
payment with respect to its beneficial interest in a Temporary Regulation S
Global Certificate prior to the Paying Agent receiving such Non-U.S. Certificate
from Euroclear or Clearstream Banking with respect to the portion of the
Temporary Regulation S Global Certificate owned by such Beneficial Owner (and,
with respect to an interest in the Permanent Regulation S Global Certificate,
prior to the Release Date).
(i) Any payments of principal of, interest on or any other
payment on a Temporary Regulation S Global Certificate received by Euroclear or
Clearstream Banking with respect to any portion of such Regulation S Global
Certificate owned by a Beneficial Owner that has not delivered the Regulation S
Certificate required by this Section shall be held by Euroclear and Clearstream
Banking solely as agents for the Paying Agent. Euroclear and Clearstream Banking
shall remit such payments to the applicable Beneficial Owner (or to a Euroclear
or Clearstream Banking member on behalf of such Beneficial Owner) only after
Euroclear or Clearstream Banking has received the requisite Regulation S
Certificate. Until the Paying Agent has received a Non-U.S. Certificate from
Euroclear or Clearstream Banking, as applicable, stating that it has received
the requisite Regulation S Certificate with respect to the beneficial ownership
of any portion of a Temporary Regulation S Global Certificate, the Paying Agent
may revoke the right of Euroclear or Clearstream Banking, as applicable, to hold
any payments made with respect to such portion of such Temporary Regulation S
Global Certificate. If the Paying Agent exercises its right of revocation
pursuant to the immediately preceding sentence, Euroclear or Clearstream
Banking, as applicable, shall return such payments to the Paying Agent and the
22
Paying Agent shall hold such payments in the Series 2001-1 Collection Account
until Euroclear or Clearstream Banking, as applicable, has provided the
necessary Non-U.S. Certificates to the Paying Agent (at which time the Paying
Agent shall forward such payments to Euroclear or Clearstream Banking, as
applicable, to be remitted to the Beneficial Owner that is entitled thereto on
the records of Euroclear or Clearstream Banking (or on the records of their
respective members)).
(j) Each Beneficial Owner with respect to a Temporary
Regulation S Global Certificate shall exchange its interest therein for an
interest in a Permanent Regulation S Global Certificate on or after the Release
Date upon furnishing to Euroclear or Clearstream Banking (as applicable) the
Regulation S Certificate and upon receipt by the Paying Agent of the Non-U.S.
Certificate thereof from Euroclear or Clearstream Banking, as applicable, in
each case pursuant to the terms of this Section. On and after the Release Date,
upon receipt by the Paying Agent of any Non-U.S. Certificate from Euroclear or
Clearstream Banking described in the immediately preceding
sentence (i) with respect to the first such certification, the Company shall
execute and the Trustee shall authenticate the applicable Permanent Regulation S
Global Certificate and (ii) with respect to the first and all subsequent
certifications, the Trustee shall exchange on behalf of the applicable
Beneficial Owners the portion of the applicable Temporary Regulation S Global
Certificate covered by such certification for a comparable portion of the
applicable Permanent Regulation S Global Certificate. Upon any exchange of a
portion of a Temporary Regulation S Global Certificate for a comparable portion
of a Permanent Regulation S Global Certificate, the Trustee shall endorse on the
schedules affixed to each of such Regulation S Global Certificates (or on
continuations of such schedules affixed to each of such Regulation S Global
Certificates and made parts thereof) appropriate notations evidencing the date
of transfer and (x) with respect to the Temporary Regulation S Global
Certificates, a decrease in the principal amount thereof equal to the amount
covered by the applicable certification and (y) with respect to the Permanent
Regulation S Global Certificate, an increase in the principal amount thereof
equal to the principal amount of the decrease in the Temporary Regulation S
Global Certificate pursuant to clause (x) above.
(k) If a Beneficial Owner of the Class A 144A Global
Certificate wishes at any time to exchange its interest in the Class A 144A
Global Certificate for an interest in the Regulation S Global Certificate, or to
transfer its interest in the Class A 144A Global Certificate to a person who
wishes to take delivery thereof in the form of an interest in the Regulation S
Global Certificate, such holder may, subject to the rules and procedures of the
Clearing Agency and to the requirements set forth in the following sentence,
exchange or cause the exchange or transfer or cause the transfer of such
interest for an equivalent beneficial interest in the Regulation S Global
Certificate. Upon receipt by the Transfer Agent and Registrar of (1)
instructions given in accordance with the Clearing Agency's procedures from or
on behalf of a Beneficial Owner of the Class A 144A Global Certificate,
directing the Transfer Agent and Registrar (via DWAC) to credit or cause to be
credited a beneficial interest in the Regulation S Global Certificate in an
amount equal to the beneficial interest in the Class A 144A Global Certificate
to be exchanged or transferred, (2) a written order in accordance with the
Clearing Agency's procedures containing information regarding the Euroclear or
Clearstream Banking
23
account to be credited with such increase and the name of such account and (3) a
certificate given by such holder stating that the exchange or transfer of such
interest has been made pursuant to and in accordance with Rule 903 or Rule 904
of Regulation S under the Securities Act, the Transfer Agent and Registrar shall
promptly deliver appropriate instructions to the Clearing Agency (via DWAC), its
nominee or the Trustee, as the case may be, to reduce or reflect on its records
a reduction of the Class A 144A Global Certificate by the aggregate principal
amount of the beneficial interest in the Class A 144A Global Certificate to be
so exchanged or transferred from the relevant participant, and the Transfer
Agent and Registrar shall promptly deliver appropriate instructions (via DWAC)
to the Clearing Agency, its nominee, or the Trustee, as the case may be,
concurrently with such reduction, to increase or reflect on its records an
increase of the principal amount of such Regulation S Global Certificate by the
aggregate principal amount of the beneficial interest in the Class A 144A Global
Certificate to be so exchanged or transferred, and to credit or cause to be
credited to the account of the person specified in such instructions (who may be
Euroclear Bank, as operator of Euroclear or Clearstream Banking or another agent
member of Euroclear or Clearstream Banking, or both, as the case may be, acting
for and on behalf of them) a beneficial interest in such Regulation S Global
Certificate equal to the reduction in the principal amount of the Class A 144A
Global Certificate. Notwithstanding anything to the contrary, the
Transfer Agent and Registrar may conclusively rely upon the completed schedule
set forth in the certificate evidencing the Certificates.
(l) If a holder of a beneficial interest in the Regulation S
Global Certificate wishes at any time to exchange its interest in the Regulation
S Global Certificate for an interest in the Class A 144A Global Certificate, or
to transfer its interest in the Regulation S Global Certificate to a person who
wishes to take delivery thereof in the form of an interest in the Class A 144A
Global Certificate, such holder may, subject to the rules and procedures of
Euroclear or Clearstream Banking and the Clearing Agency, as the case may be,
and to the requirements set forth in the following sentence, exchange or cause
the exchange or transfer or cause the transfer of such interest for an
equivalent beneficial interest in the Class A 144A Global Certificate. Upon
receipt by the Transfer Agent and Registrar of (1) instructions given in
accordance with the procedures of Euroclear or Clearstream Banking and the
Clearing Agency, as the case may be, from or on behalf of a Beneficial Owner of
the Regulation S Global Certificate directing the Transfer Agent and Registrar
to credit or cause to be credited a beneficial interest in the Class A 144A
Global Certificate in an amount equal to the beneficial interest in the
Regulation S Global Certificate to be exchanged or transferred, (2) a written
order given in accordance with the procedures of Euroclear or Clearstream
Banking and the Clearing Agency, as the case may be, containing information
regarding the account with the Clearing Agency to be credited with such increase
and the name of such account and (3) prior to the expiration of the Distribution
Compliance Period, a certificate given by such Beneficial Owner stating that the
person transferring such interest in such Regulation S Global Certificate
reasonably believes that the person acquiring such interest in the Class A 144A
Global Certificate is a Qualified Institutional Buyer (including foreign
Qualified Institutional Buyers) and is obtaining such beneficial interest for
its own account or the account of a Qualified Institutional Buyer (including
foreign Qualified Institutional Buyers) in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any state of the
United States or any other jurisdiction, the Transfer Agent and
24
Registrar shall promptly deliver (via DWAC) appropriate instructions to the
Clearing Agency, its nominee or the Trustee, as the case may be, to reduce or
reflect on its records a reduction of the Regulation S Global Certificate by the
aggregate principal amount of the beneficial interest in such Regulation S
Global Certificate to be exchanged or transferred, and the Transfer Agent and
Registrar shall promptly deliver (via DWAC) appropriate instructions to the
Clearing Agency, its nominee, or the Trustee, as the case may be, concurrently
with such reduction, to increase or reflect on its records an increase of the
principal amount of the Class A 144A Global Certificate by the aggregate
principal amount of the beneficial interest in the Regulation S Global
Certificate to be so exchanged or transferred, and to credit or cause to be
credited to the account of the person specified in such instructions a
beneficial interest in the Class A 144A Global Certificate equal to the
reduction in the principal amount of the Regulation S Global Certificate. After
the expiration of the Distribution Compliance Period, the certification
requirement set forth in this Section shall no longer apply to such exchanges
and transfers. Notwithstanding anything to the contrary, the Transfer Agent and
Registrar may conclusively rely upon the completed schedule set forth in the
certificate evidencing the Certificates.
(m) Any beneficial interest in one of the Global Certificates
that is transferred to a person who takes delivery in the form of an interest in
the other Global Certificate will, upon transfer, cease to be an interest in
such Global Certificate and become an interest in the other Global
Certificate and, accordingly, will thereafter be subject to all transfer
restrictions and other procedures applicable to beneficial interests in such
other Global Certificate for as long as it remains such an interest.
(n) Until the later of the Release Date and the provision of
the certifications required by this Section, beneficial interests in a
Regulation S Global Certificate may only be held through Euroclear Bank, as
operator of Euroclear or Clearstream Banking or another agent member of
Euroclear and Clearstream Banking acting for and on behalf of them. During the
Distribution Compliance Period, interests in the Regulation S Global Certificate
may be exchanged for interests in the Class A 144A Global Certificate only in
accordance with the certification requirements described above.
SECTION 2.5. RESERVED.
SECTION 2.6. PROCEDURE FOR DECREASING THE INVESTED AMOUNT. If as of the
last day of any period of three consecutive Settlement Periods the daily average
excess during such period of the Series 2001-1 Invested Amount over the Series
2001-1 Adjusted Invested Amount equals or exceeds the Reduction Threshold as
determined by the Master Servicer, a portion of the Class A Invested Amount and
the Class B Invested Amount shall be repaid (a "Reduction"), by causing the
Trustee to distribute to the Term Certificateholders an amount (the "Reduction
Amount") equal to the lesser of: the smallest amount of such excess existing
during all three such Settlement Periods rounded down to the nearest $1,000,000,
or the amount which would reduce the Series 2001-1 Invested Amount to
$100,000,000. In no event shall a Reduction be made in an amount which would
cause the Series 2001-1 Invested Amount to be reduced below $100,000,000. The
Master Servicer shall direct the Trustee in writing to make such distribution
25
and shall specify the amount of the Reduction to be distributed as specified
below. The distribution of the Reduction Amount shall be made to the Term
Certificateholders pro rata based on the Initial Invested Amount of each Class,
from the funds on deposit in the Series 2001-1 Principal Collection
Sub-subaccount on the immediately succeeding Distribution Date (a "Special
Distribution Date"); provided that no Early Amortization Event or Potential
Early Amortization Event (other than pursuant to clauses (b), (c) and (d) of
Section 5.1 hereof) has occurred and is continuing and the Master Servicer shall
have given the Trustee written notice of such Reduction and the related
Reduction Amount (which amount shall not exceed the available funds on deposit
in the Series 2001-1 Principal Collection Sub-subaccount as of the date of such
notice) at least five Business Days prior to the related Special Distribution
Date setting forth the amount of such Reduction and, in the case of such notice
to the Trustee, instructions not to distribute to the Company any amounts
pursuant to subsection 3.3(c)(i) until the condition set forth in the second
proviso in such subsection is satisfied.
SECTION 2.7. SALE OF ADDITIONAL TERM CERTIFICATES. (a) The Company may,
upon written notice to the Trustee, the Master Servicer and the Term
Certificateholders and upon satisfaction of each of the conditions set forth in
subsection 2.7(b), as well as the applicable conditions to such issuance set
forth in subsection 5.10(b) of the Agreement, direct the Trustee in writing to
issue on the following Distribution Date (each such date a "Subsequent Issuance
Date") additional Class A Certificates and Class B Certificates identical to the
existing Class A Certificates and Class B Certificates (except that the
Certificate Rate applicable to such additional Class A Certificates and Class B
Certificates, as the case may be, may differ from the Certificate Rate
applicable to such existing Class A Certificates or Class B Certificates, as the
case may be) in an aggregate principal amount and in such names and
denominations as specified by the Company in accordance with subsection 2.7(c)
below; provided that the Series 2001-1 Target Receivables Amount shall not
exceed the Series 2001-1 Allocated Receivables Amount after giving effect to any
increase in the Invested Amount on such Subsequent Issuance Date; provided
further that the principal amount of the Class A Certificates and the Class B
Certificates issued in any such additional issuance shall be issued in such
proportion that would cause, after giving effect to such issuance, the Class B
Invested Amount to be no less than the same percentage of the Series 2001-1
Invested Amount as the Class B Initial Invested Amount was of the Series 2001-1
Initial Invested Amount.
The Company may arrange for the sale of such additional Class A
Certificates and Class B Certificates pursuant to a private placement or any
other sale arrangement. On each Subsequent Issuance Date, if any, the Series
2001-1 Invested Amount, the Class A Invested Amount and the Class B Invested
Amount (and each other amount set forth herein, the calculation of which is
based on such amount) shall be recalculated by the Master Servicer to include
the additional Invested Amounts with respect to the Class A Certificates and
Class B Certificates issued on such date.
(b) On any Subsequent Issuance Date, the Trustee shall only
authenticate and deliver any additional Class A Certificates and Class B
Certificates upon satisfaction of the following conditions on or prior to such
Subsequent Issuance Date:
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(i) the Rating Agencies shall have been notified by the
Company of the proposed issuance of additional Class A and Class B Certificates
at least 10 days prior to the proposed Subsequent Issuance Date and each Rating
Agency shall have issued a rating (as confirmed in a letter delivered to the
Trustee) on the additional Class A and Class B Certificates that is equivalent
to that rating issued by such Rating Agency on the Initial Issuance Date;
(ii) no Early Amortization Event or Potential Early
Amortization Event shall have occurred and be continuing with respect to Series
2001-1 or would occur as a result of such issuance; and
(iii) an Officer's Certificate of the Company (supported
as to legal matters by an Opinion of Counsel (addressed to the Trust and the
Trustee) with respect to any question of law) shall have been delivered to the
Trustee (A) stating that all of the conditions (including, without limitation,
any applicable conditions set forth in the Agreement) to the issuance of such
additional Class A and Class B Certificates (including the designation of the
applicable Certificate Rates for such additional Class A and Class B
Certificates) shall have been satisfied; and (B) setting forth the calculations
required by Section 2.7(a).
(c) On each Subsequent Issuance Date, the Company shall sign,
on behalf of the Trust, and shall direct the Trustee in a written communication
signed by a Responsible Officer to duly authenticate, and the Trustee, upon
receiving such direction, shall so authenticate and deliver the related
additional Term Certificates in such names and such denominations and deliver
such additional Term Certificates in accordance with such written directions and
Section 2.3.
ARTICLE III
ARTICLE III OF THE AGREEMENT
Section 3.1 of the Agreement shall be read in its entirety as provided
in the Agreement. Article III of the 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 2001-1
Certificates:
SECTION 3.2. ESTABLISHMENT OF TRUST ACCOUNTS.
(a) The Trustee shall cause to be established and maintained
in the name of the Trust:
(i) (A) for the benefit of the Class A
Certificateholders, (B) for the benefit, subject to the prior interest of the
Class A Certificateholders, of the Class B Certificateholders, and (C) for the
benefit, subject to the prior interests of the Term
27
Certificateholders, of the holder of the Series 2001-1 Subordinated Certificate,
a subaccount of the Collection Account (the "Series 2001-1 Collection
Subaccount"), which subaccount is the Series Collection Subaccount with respect
to Series 2001-1, bearing a designation clearly indicating that the funds
deposited therein are held (A) for the benefit of the Class A
Certificateholders, (B) for the benefit, subject to the prior interest of the
Class A Certificateholders, of the Class B Certificateholders, and (C) for the
benefit, subject to the prior interests of the Term Certificateholders, of the
holder of the Series 2001-1 Subordinated Certificate;
(ii) (A) for the benefit of the Class A Certificateholders, (B)
for the benefit, subject to the prior interest of the Class A
Certificateholders, of the Class B Certificateholders, (C) for the benefit,
subject to prior interests of the Term Certificateholders, of the holder of the
Series 2001-1 Subordinated Certificate, three subaccounts of the Series 2001-1
Collection Subaccount: (x) the Series 2001-1 Principal Collection
Sub-subaccount, (y) the Series 2001-1 Accrued Interest Sub- subaccount; and (z)
the Series 2001-1 Non-Principal Collection Sub-subaccount (respectively, the
"Series 2001-1 Principal Collection Sub-subaccount", the "Series 2001-1 Accrued
Interest Sub- subaccount" and the "Series 2001-1 Non-Principal Collection
Sub-subaccount"), each bearing a designation clearly indicating that the funds
deposited therein are held (A) for the benefit of the Class A
Certificateholders, (B) for the benefit, subject to the prior interest of the
Class A Certificateholders, of the Class B Certificateholders, and (C) for the
benefit, subject to the prior interest of the Term Certificateholders, of the
holder of the Series 2001-1 Subordinated Certificate; and
(iii) All accounts established pursuant to this subsection 3.2(a)
and listed on Schedule 1, are collectively referred to as, the "Trust
Accounts"). The Trustee, on behalf of the 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 (A) the Class A Certificateholders, (B)
subject to the prior interest of the Class A Certificateholders, the Class B
Certificateholders, and (C) subject to the prior interest of the Term
Certificateholders, the holder of the Series 2001-1 Subordinated Certificate.
(b) After giving effect to any distribution to the Company
pursuant to subsection 3.3(b), amounts on deposit and available for investment
in the Series 2001-1 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
2001-1 Revolving Period, on or prior to the next Business Day and (ii) in the
case of any such investment made during the Series 2001-1 Amortization Period,
on or prior to the Business Day immediately preceding the next
28
Distribution Date. Amounts on deposit and available for investment in the Series
2001-1 Non-Principal Collection Sub-subaccount and the Series 2001-1 Accrued
Interest 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 next Distribution Date. As of the
Business Day immediately preceding such next Distribution Date, (x) all interest
and other investment earnings (net of losses and investment expenses) on funds
deposited in the Series 2001-1 Accrued Interest Sub-subaccount shall be
deposited in the Series 2001-1 Non-Principal Collection Sub-subaccount and (y)
all interest and investment earnings (net of losses and investment expenses) on
funds deposited in the Series 2001-1 Principal Collection Sub-subaccount shall
be deposited in the Series 2001-1 Non-Principal Collection Sub-subaccount. All
Eligible Investments in the Trust Accounts shall be held by the Trustee, on
behalf of the Holders, for the exclusive benefit of the Persons (and, for each
such Person, to the extent) set forth in clauses (A), (B) and (C) of subsection
3.2(a); provided, however, that funds on deposit in a Trust Account which is a
Sub-subaccount of a Collection Account may, at the direction of the Master
Servicer, be invested together with funds held in other Sub-subaccounts of the
Collection Account.
SECTION 3.3. DAILY ALLOCATIONS. (a) The portion of the Aggregate Daily
Collections allocated to the Series 2001-1 Certificates pursuant to Article III
of the Agreement shall be allocated and distributed as set forth in this Article
III by the Trustee based solely on the information provided to it by the Master
Servicer in the Daily Report (upon which the Trustee may conclusively rely).
(b) (i) On each Business Day, an amount equal to the excess,
if any, of (A) the Monthly Expense Amount for such day specified in the Daily
Report (or, during the Series 2001- 1 Revolving Period, 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 2001-1 Accrued Interest
Sub-subaccount and the Series 2001-1 Non-Principal Collection Sub-subaccount
pursuant to this clause (i), shall be transferred from the Series 2001-1
Collection Subaccount to the Series 2001-1 Non-Principal Collection
Sub-subaccount to the extent attributable to the Series 2001-1 Monthly Servicing
Fee or Program Costs and to the Series 2001-1 Accrued Interest Sub-subaccount to
the extent attributable to the Series 2001-1 Interest Distributable Amount.
(ii) Following the transfers pursuant to clause (i)
above, any remaining funds on deposit in the Series 2001-1 Collection Subaccount
shall be transferred by the Trustee to the Series 2001-1 Principal Collection
Sub-subaccount.
(c) (i) On each Business Day during the Series 2001-1
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 2001-1 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) be distributed by the Trustee to
the Company in accordance with directions contained in such Daily Report;
provided that such distributions shall be made only if no Potential Early
Amortization Event pursuant to clauses (e) and (k) of Section 5.1 hereof and
clauses 7.1(a)(ii) and (iii) of the Agreement and no Early Amortization Event
has occurred and is continuing and only to the extent that, after giving effect
to such distributions, the Series 2001-1 Target Receivables Amount would not
exceed the Series
29
2001-1 Allocated Receivables Amount; provided further that if the Master
Servicer shall have given notice to the Trustee of a Reduction and the related
Reduction Amount, pursuant to subsection 2.6, the Trustee shall retain, until
the related Special Distribution Date, aggregate amounts on deposit in the
Series 2001-1 Principal Collection Sub-subaccount equal to the Reduction Amount
in respect thereof; provided still further that in the event that the amount
transferred from the Series 2001-1 Collection Subaccount to the Series 2001-1
Non-Principal Collection Sub-subaccount or Series 2001-1 Accrued Interest
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 2001-1 Principal
Collection Sub-subaccount, up to the amount of such deficiency, shall, net of
any unpaid Program Costs (without giving effect to the limitation contained in
the proviso of the definition of Program Costs), be transferred to the Series
2001-1 Non-Principal Collection Sub-subaccount or the Series 2001-1 Accrued
Interest Sub-subaccount, as the case may be. 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.
(ii) On each Business Day during the Series 2001-1
Amortization Period (including Distribution Dates), funds deposited in the
Series 2001-1 Principal Collection Sub- subaccount shall be invested in
accordance with subsection 3.2(b) and such funds net of interest and investment
earnings shall be distributed on the applicable Distribution Date in accordance
with subsection 3.6(c). Except as otherwise provided in subsection 3.6(c), no
amounts on deposit in the Series 2001-1 Principal Collection Sub-subaccount
shall be distributed by the Trustee to the Company or the holder of the Series
2001-1 Subordinated Certificate during the Series 2001-1 Amortization Period.
Notwithstanding the foregoing, so long as no Early Amortization Event or
Potential Early Amortization Event has occurred and is continuing, on any date
that the Series 2001- 1 Adjusted Invested Amount has been reduced to zero, as
set forth on the applicable Daily Report (upon which the Trustee may
conclusively rely), amounts on deposit in the Series 2001-1 Principal Collection
Sub-subaccount in excess of the Series 2001-1 Invested Amount on such day may be
withdrawn from the Series 2001-1 Principal Collection Sub-subaccount and
distributed to or as instructed by the holder of the Series 2001-1 Subordinated
Certificate; provided, however, that no such distribution shall be made until
all Program Costs are paid, without giving effect to the limitation contained in
the proviso of the definition of Program Costs.
(d) Reserved.
(e) The allocations to be made pursuant to this Section 3.3 are
subject to the provisions of Sections 2.5, 2.6, 7.2, 9.1 and 9.2 of the
Agreement.
SECTION 3.4. DETERMINATION OF INTEREST.
(a) The amount of interest distributable with respect to the
Term Certificates on each Distribution Date for the Accrual Period ending on
such Distribution Date shall be
30
determined as follows:
(i) for the Class A Certificates, an amount (the
"Class A Monthly Interest") equal to the product of (A) the Class A Certificate
Rate for such Accrual Period, (B) the Class A outstanding principal amount on
the first day of such Accrual Period (after giving effect to any distributions
of principal on such date) or in the case of the first Distribution Date, the
Initial Issuance Date and (C) the actual number of days in such Accrual Period
divided by 360; provided that if any additional Class A Certificates have been
issued on any Subsequent Issuance Date, the Class A Monthly Interest shall equal
the sum of the monthly interest amount for each outstanding tranche of Class A
Certificates (based on the outstanding principal amount and the applicable Class
A Certificate Rate in respect of such tranche);
(ii) for the Class B Certificates, an amount (the
"Class B Monthly Interest") equal to the product of (A) the Class B Certificate
Rate for such Accrual Period, (B) the Class B outstanding principal amount on
the first day of such Accrual Period (after giving effect to any distributions
of principal on such date) or in the case of the first Distribution Date, the
Initial Issuance Date and (C) the actual number of days in such Accrual Period
divided by 360; provided that if any additional Class B Certificates have been
issued on any Subsequent Issuance Date, the Class B Monthly Interest shall equal
the sum of the monthly interest amount for each outstanding tranche of Class B
Certificates (based on the outstanding principal amount and the applicable Class
B Certificate Rate in respect of such tranche); and
(iii) The Master Servicer shall notify the Trustee in
writing (upon which the Trustee may conclusively rely) on each Settlement Report
Date of the amount calculated pursuant to clauses (i) and (ii) above.
(b) (i) On each Distribution Date, the Master Servicer shall
determine the excess, if any (the "Class A Interest Shortfall"), of (A) the
Class A Monthly Interest for the Accrual Period ending on the day prior to such
Distribution Date over (B) the amount which will be available from the Series
2001-1 Accrued Interest Sub-subaccount to be distributed to the Class A
Certificateholders on such Distribution Date in respect thereof pursuant to this
Supplement. If the Class A Interest Shortfall with respect to any Distribution
Date is greater than zero, an additional amount ("Class A Additional Interest")
equal to the product, for each following Accrual Period (or portion thereof)
until such Class A Interest Shortfall is paid, of (A) the applicable Class A
Certificate Rate for such Accrual Period, (B) such Class A Interest Shortfall
(or the portion thereof which has not been paid to the Class A
Certificateholders) and (C) the actual number of days in such Accrual Period (or
portion thereof) divided by 360, shall be payable as provided herein with
respect to the Class A Certificates on each Distribution Date following such
Distribution Date until such Class A Interest Shortfall is paid in full to the
Class A Certificateholders.
(ii) On each Distribution Date, the Master Servicer
shall determine the excess, if any (the "Class B Interest Shortfall"), of (A)
the Class B Monthly Interest for the Accrual Period ending on the day prior to
such Distribution Date over (B) the amount which will
31
be available from the Series 2001-1 Accrued Interest Sub-subaccount to be
distributed to the Class B Certificateholders on such Distribution Date in
respect thereof pursuant to this Supplement. If the Class B Interest Shortfall
with respect to any Distribution Date is greater than zero, an additional amount
("Class B Additional Interest") equal to the product, for each following Accrual
Period (or portion thereof) until such Class B Interest Shortfall is paid, of
(A) the applicable Class B Certificate Rate for such Accrual Period, (B) such
Class B Interest Shortfall (or the portion thereof which has not been paid to
the Class B Certificateholders) and (C) the actual number of days in the next
Accrual Period (or portion thereof) divided by 360, shall be payable as provided
herein with respect to the Class B Certificates on each Distribution Date
following such Distribution Date until such Class B Interest Shortfall is paid
in full to the Class B Certificateholders.
SECTION 3.5. DETERMINATION OF SERIES 2001-1 MONTHLY PRINCIPAL. (A)
PAYMENTS OF SERIES 2001-1 MONTHLY PRINCIPAL. The aggregate amount (the "Series
2001-1 Monthly Principal Payment") distributable from the Series 2001-1
Principal Collection Sub-subaccount on each Distribution Date during the Series
2001-1 Amortization Period shall be equal to the amount on deposit in such
account on the immediately preceding Settlement Report Date; provided, however,
that the Series 2001-1 Monthly Principal Payment on any Distribution Date shall
not exceed the Series 2001-1 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 2001-1 PRINCIPAL. If, on any Special
Allocation Settlement Report Date, the Series 2001-1 Allocable Charged-Off
Amount is greater than zero for the related Settlement Period, the Trustee shall
(in accordance with 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 2001-1 Required Reserves shall be reduced
(but not below zero) by an amount equal to the Series 2001-1 Allocable
Charged-Off Amount (which shall also be reduced by the amount so applied);
(ii) then, to the extent that the Series 2001-1 Allocable
Charged-Off Amount is greater than zero following the application in clause (i)
above, the Class B Invested Amount shall be reduced (but not below zero) by an
amount equal to such remaining Series 2001-1 Allocable Charged-Off Amount (which
shall also be reduced by the amount so applied); and
(iii) then, to the extent that the Series 2001-1
Allocable Charged-Off Amount is greater than zero following the applications in
clauses (i) and (ii) above, the Class A Invested Amount shall be reduced (but
not below zero) by an amount equal to such remaining Series 2001-1 Allocable
Charged-Off Amount (which shall also be reduced by the amount so applied).
(C) INCREASES TO SERIES 2001-1 PRINCIPAL. If, on any Special
Allocation
32
Settlement Report Date, the Series 2001-1 Allocable Recoveries Amount
is greater than zero for the related Settlement Period, the Trustee shall (in
accordance with written directions from the Master Servicer upon which the
Trustee may conclusively rely) make the following applications (after giving
effect to the applications in paragraph (b) of such amount in the following
order of priority):
(i) the Class A Invested Amount shall be increased (but
only to the extent of any previous reductions of the Class A Invested Amount
pursuant to subsection 3.5(b)(iii)) by the amount of the Series 2001-1 Allocable
Recoveries Amount (which shall also be reduced by the amount so applied);
(ii) then, to the extent that the Series 2001-1 Allocable
Recoveries Amount is greater than zero following the application in clause (i)
above, the Class B Invested Amount shall be increased (but only to the extent of
any previous reductions of the Class B Invested Amount pursuant to subsection
3.5(b)(ii)) by such remaining Series 2001-1 Allocable Recoveries Amount (which
shall also be reduced by the amount so applied); and
(iii) then, to the extent that the Series 2001-1 Allocable
Recoveries Amount is greater than zero following the applications in clauses (i)
and (ii) above, the Series 2001-1 Required Reserves shall be increased (but only
to the extent of any previous reductions of the Series 2001-1 Required Reserves
pursuant to subsection 3.5(b)(i)) by such remaining Series 2001-1 Allocable
Recoveries Amount (which shall also be reduced by the amount so applied).
SECTION 3.6. INTEREST APPLICATIONS AND OTHER DISTRIBUTIONS.
(a) The Trustee shall distribute (to the extent funds are
available), on each Distribution Date, beginning with the June 2001 Distribution
Date, from funds on deposit in the Series 2001-1 Accrued Interest Sub-subaccount
in the following order of priority:
(i) to the Class A Certificateholders, an amount equal
to the Class A Monthly Interest payable on such Distribution Date, plus the
amount of any Class A Monthly Interest previously due but not distributed to the
Class A Certificateholders on a prior Distribution Date, plus the amount of any
Class A Additional Interest for such Distribution Date and any Class A
Additional Interest previously due but not distributed to the Class A
Certificateholders on a prior Distribution Date (collectively, the "Class A
Interest Distributable Amount"); provided, however, that during the Series
2001-1 Amortization Period, no Class A Additional Interest will be paid until
repayment in full of the Series 2001-1 Invested Amount and payment in full of
all Class A Monthly Interest and Class B Monthly Interest.
(ii) to the Class B Certificateholders, an amount equal
to the Class B Monthly Interest payable on such Distribution Date, plus the
amount of any Class B Monthly Interest previously due but not distributed to the
Class B
33
Certificateholders on a prior Distribution Date, plus the amount of any Class B
Additional Interest for such Distribution Date and any Class B Additional
Interest previously due but not distributed to the Class B Certificateholders on
a prior Distribution Date (collectively, the "Class B Interest Distributable
Amount" and together with the Class A Interest Distributable Amount, the "Series
2001-1 Interest Distributable Amount"); provided, however, that during the
Series 2001-1 Amortization Period, no Class B Additional Interest will be paid
until repayment in full of the Series 2001-1 Invested Amount and payment in full
of all Class A Monthly Interest and Class B Monthly Interest.
(b) On each Distribution Date (to the extent funds are
available), the Trustee shall apply funds on deposit in the Series 2001-1
Non-Principal Collection Sub-subaccount in the following order of priority:
(i) an amount equal to the Series 2001-1 Monthly
Servicing Fee for the related Settlement Period together with the unpaid amount
with respect to any prior Distribution Date shall be withdrawn from the Series
2001-1 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 Agreement which shall be paid to the Trustee);
(ii) an amount equal to any Program Costs due and
payable shall be withdrawn from the Series 2001-1 Non-Principal Collection
Sub-subaccount by the Trustee and paid to the Persons owed such amounts; and
(iii) any remaining amounts on deposit in the Series
2001-1 Non-Principal Collection Sub-subaccount on any Distribution Date (in
excess of the Monthly Expense Amount as of such day) not allocated pursuant to
clauses (i) and (ii) above shall be paid to the holder of the Series 2001-1
Subordinated Certificate; provided, however, that during the Series 2001-1
Amortization Period, such remaining amounts shall be deposited in the Series
2001-1 Principal Collection Sub-subaccount for distribution in accordance with
subsection 3.6(c), and provided further, that no such distribution shall be made
until all Program Costs are paid, without giving effect to the limitation
contained in the proviso of the definition of Program Costs; and provided still
further that such payment shall be made only to the extent that, after giving
effect to such distributions, the Series 2001-1 Target Receivables Amount would
not exceed the Series 2001-1 Allocated Receivables Amount.
(c) During the Series 2001-1 Amortization Period, the Trustee
shall apply, on each Distribution Date, amounts on deposit in the Series 2001-1
Principal Collection Sub-subaccount in the following order of priority:
(i) (A) first, pro rata, to the Class A
Certificateholders until the repayment in full of the Class A Invested Amount;
and
(B) second, pro rata, to the Class B
Certificateholders until the repayment in full of the Class B Invested Amount;
(ii) following the repayment in full of the Series 2001-1
Invested
34
Amount, if 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 2001-1 Principal Collection Sub-
subaccount and paid to the Trustee or such other Person; and
(iii) following the repayment in full of the Series 2001-1
Invested Amount and of all of the amounts set forth in clause (ii) above, the
remaining amount on deposit in the Series 2001-1 Principal Collection
Sub-subaccount on such Distribution Date, if any, shall be distributed to the
holder of the Series 2001-1 Subordinated Certificate; provided, however, that no
such distribution shall be made until all Program Costs are paid, without giving
effect to the limitation contained in the proviso of the definition of Program
Costs; and provided still further that such payment shall be made only to the
extent that, after giving effect to such distributions, the Series 2001-1 Target
Receivables Amount would not exceed the Series 2001-1 Allocated Receivables
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 Class A or Class B
Certificateholder hereunder or under any Class A or Class B Certificate such tax
shall reduce the amount otherwise distributable to the Certificateholder
hereunder or under any Class A or Class B Certificate, the Trustee (or Paying
Agent) is hereby authorized and directed to retain from amounts otherwise
distributable to a Class A or Class B 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 Class A or Class B
Certificateholder shall be treated as cash distributed to such 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 Class A or Class B Certificateholder, the Trustee (or Paying Agent) shall seek
advice from its counsel or accountants regarding its obligation to so withhold
or deduct.
ARTICLE IV
DISTRIBUTIONS AND REPORTS
Article IV of the Agreement (except for any portion thereof relating to
another Series) shall read in its entirety as follows and the following shall be
exclusively applicable to the Term Certificates:
SECTION 4.1. DISTRIBUTIONS.
(a) The final distribution of principal in respect of the Term
Certificates will be made after due notice by the Trustee of the pendency of
such distribution (subject to at least
35
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
Term 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 Term Certificates or on account of interest or
fees on the Term 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
Term Certificates are registered at the close of business on the related Record
Date. Such payment will be made by a check mailed to the Term Certificateholders
at such Term Certificateholders' registered addresses or, upon application by
any Term 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 Term
Certificateholder with a bank in New York City.
(b) All allocations and distributions hereunder shall be in
accordance with the Daily Report and the Monthly Settlement Statement (upon
which the Trustee may conclusively rely) and subject to Section 3.1(h) of the
Agreement.
SECTION 4.2. STATEMENTS AND NOTICES.
(a) Monthly Settlement Statements. On each Settlement Report
Date (commencing with the Settlement Report Date occurring in June 2001), the
Master Servicer shall deliver to the Trustee and each Rating Agency 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, in
each case, where applicable, with respect to the Class A Certificates and the
Class B Certificates, the Carrying Cost Reserve Ratio and the Servicing Reserve
Ratio and the components of the calculation thereof, each as recalculated for
the period until the next succeeding Settlement Report Date. The Trustee shall
forward a copy of each Monthly Settlement Statement to any Term
Certificateholder upon request by such Term Certificateholder. The Company and
the Master Servicer will deliver copies of all notices, reports, statements and
other documents delivered by it pursuant to the Agreement and any Supplements to
each Rating Agency.
(b) Annual Certificateholders' Tax Statement. On or before
May 1 of each calendar year (or such earlier date as required by applicable
law), beginning with calendar year 2002, the Company shall furnish, or cause to
be furnished, to each Person who at any time during the preceding calendar year
was a Term Certificateholder, a statement prepared by the Master Servicer
containing the aggregate amount distributed to such Person for such calendar
year or the applicable portion thereof during which such Person was a Term
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 information as the Master Servicer deems necessary or desirable
to enable the Term Certificateholders to prepare their tax returns. Such
obligation of the Master Servicer 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.
36
(c) Early Amortization Event/Distribution of Principal Notices.
Upon the occurrence of an Early Amortization Event or Potential Early
Amortization Event with respect to Series 2001-1, the Company or the Master
Servicer, as the case may be, shall give prompt written notice thereof to the
Trustee. As promptly as reasonably practicable after its receipt of notice of
the occurrence of an Early Amortization Event with respect to Series 2001-1, the
Trustee shall give notice thereof (i) to each Rating Agency (which notice shall
be given in writing not later than the second Business Day after such receipt)
and (ii) to each Term Certificateholder.
SECTION 4.3. NOTICE PROCEDURES. Notices required to be given to the
Term Certificateholders hereunder will be given by first class mail to the
addresses of such holders as they appear in the Certificate Register. The
Company and the Master Servicer will (and the Master Servicer will cause any
sub-servicer to) deliver copies of all notices, reports, statements and other
documents delivered by it pursuant to the Agreement to each Rating Agency.
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 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 Term 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 interest owing on any Term Certificates within two
Business Days of the date such interest 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 under the Agreement to or for the benefit of the Term
Certificateholders within five Business Days of the date such other amount is
due;
(b) failure on the part of the Company or the Master Servicer
to observe or perform in any material respect any covenants or agreements of the
Company or the Master Servicer, respectively, set forth in the Agreement which
has a Material Adverse Effect on the Term Certificateholders which continues
unremedied until 30 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 by the Trustee, or the Company and the
Trustee by holders of the Term Certificates evidencing 25% or more of the Series
2001-1 Invested Amount;
(c) any representation or warranty made by the Company or the
Master Servicer in the Agreement to or for the benefit of the Term
Certificateholders shall prove to have
37
been incorrect in any material respect when made or when deemed made which
continues to be incorrect until 30 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 holders of the Term Certificates evidencing 25% or more of the
Series 2001-1 Invested Amount and as a result of such incorrectness, the
interests of the Term Certificateholders have been materially and adversely
affected; provided, however, that an Early Amortization Event with respect to
the Series 2001-1 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 Agreement within ten 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 2001-1 Allocated Receivables Amount shall be
less than the Series 2001-1 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) either the Agreement, this Supplement 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) a Reduction shall have occurred and, as a result of such
Reduction, the Series 2001-1 Invested Amount shall have been reduced to an
amount below $100,000,000;
(k) 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
38
payment to a plan to which either of such sections applies, unless there shall
have been delivered to the Trustee and each Rating Agency proof of the release
of, or payment of amounts secured by, such Lien, or there 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 and
the Rating Agencies; or
(l) 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 Term 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 2001-1 Invested Amount.
then, in the case of (x) any event described in Section 7.1 of the 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 Term 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 subsections, the Trustee may, and at the written
direction of Term Certificateholders evidencing greater than 25% of the
Controlling Class shall, by written notice then given to the Company and the
Master Servicer, declare that an early amortization period has commenced as of
the date of such notice with respect to Series 2001-1 (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 ten Business Days from the
occurrence of such event, then an Early Amortization Period shall commence
automatically on the eleventh Business Day from the occurrence of such event
unless, (i) prior to the end of such ten Business Day period, the Series 2001-1
Allocated Receivables Amount shall no longer be less than the Series 2001-1
Target Receivables Amount and (ii) so long as the Series 2001-1 Allocated
Receivables Amount continues to be equal to or greater than the Series 2001-1
Target Receivables Amount, within ten Business Days from the end of such ten
Business Day period, Term Certificateholders representing 66-2/3% or more of the
Controlling Class shall have waived the occurrence of such event and notified
the Trustee in writing of such waiver. 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
39
Performance Undertaking).
Notwithstanding the foregoing, a delay in or failure in
performance referred to in clause (a) above for a period of five Business Days
after the applicable grace period, or in clause (c) above for a period of 30
Business Days after the applicable grace period, will not constitute an Early
Amortization Event if such delay or failure could not have been prevented by the
exercise of reasonable diligence by the Company and such delay or failure was
caused by a Force Majeure Delay. The Company will nevertheless be required to
use its best efforts to perform its obligations in a timely manner in accordance
with the terms of the Transaction Documents, and the Company shall promptly give
the Trustee an Officer's Certificate notifying it of any such failure or delay
by it.
ARTICLE VI
SERVICING FEE
SECTION 6.1. SERVICING COMPENSATION. A monthly servicing fee (the
"Series 2001-1 Monthly Servicing Fee") shall be payable to the Master Servicer
on each Distribution Date for the preceding Settlement Period, in an amount
equal to the product of (a) the Servicing Fee and (b) a fraction the numerator
of which is the daily average Series 2001-1 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 Term Certificateholders that each and all
of their respective representations and warranties contained in the Agreement is
true and correct in all material respects as of the Issuance 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 Agreement in all material
respects;
(b) it shall not terminate the Agreement unless in strict
compliance with the terms of the Agreement;
(c) prior to the date hereof, it has (i) delivered to the
Trustee executed copies of software licenses or sublicenses, in a form
reasonably acceptable to the Trustee, which grant to
40
the Trustee the right to utilize any of the software owned or licensed by the
Servicers that is necessary to perform the collection and administrative
functions to be performed by the Trustee under the Transaction Documents, (ii)
delivered to the Trustee executed copies of any landlord waivers, in a form
reasonably acceptable to the Trustee, that may be reasonably necessary to grant
to the Trustee access to any leased premises of the Servicers for which the
Trustee may require access to perform the collection and administrative
functions to be performed by the Trustee under the Transaction Documents and
(iii) taken all actions reasonably requested by the Trustee in connection with,
and to ensure completion of, each of the Servicer Site Review and the Standby
Liquidation System; and
(d) for so long as any Term Certificates are outstanding and
are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will cause to be provided to any holder of Term
Certificates or an interest therein and any prospective purchaser of Term
Certificates or an interest therein (which prospective purchaser is designated
by any holder of Term Certificates), upon the request of such holder or
prospective purchaser, the information required to be provided to such holder or
prospective purchaser by Rule 144A(d)(4) under the Securities Act.
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 Agreement in all material respects.
The Master Servicer shall cooperate in good faith to allow the Trustee to use
the Master Servicer's available facilities and expertise upon the Master
Servicer's termination or default.
SECTION 7.4. RESERVED.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. RATIFICATION OF AGREEMENT. As supplemented by this
Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
SECTION 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
41
purposes of this Supplement and the sale of the Term 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 Term
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 Agreement.
SECTION 8.6. SEVERABILITY. If any provision hereof is void or
unenforceable in any jurisdiction, such voidness or unenforceability shall not
affect the validity or enforceability of (i) such provision in any other
jurisdiction or (ii) any other provision hereof in such or any other
jurisdiction.
SECTION 8.7. NOTICES. All notices, requests and demands to or upon any
party hereto to be effective shall be given (i) in the case of the Company, the
Master Servicer and the Trustee, in the manner set forth in Section 11.5 of the
Agreement and (ii) 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, addressed as follows in the case of the
Rating Agencies or to such other address as may be hereafter notified by the
respective parties hereto:
If to Moody's βββββ'β Investors Service
ββ ββββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: βββ ββββββ
Telecopier: βββ-βββ-ββββ
If to S&P: Standard & Poor's Ratings Services
ββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: ββββββ ββββββββ
Telecopier: (βββ) βββ-ββββ
Any notice required or permitted to be mailed to a Term Certificateholder shall
be given as
42
provided in Section 4.3.
SECTION 8.8. COUNTERPARTS. This Supplement may be executed in any number
of counterparts and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original, and all of
which taken together shall constitute one and the same agreement.
SECTION 8.9. LIMITATION ON ADDITION AND TERMINATION OF SELLERS.
(a) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement, no Seller shall be added thereunder unless (subject
to the proviso contained in clause (iv) below) each of the following conditions
shall have been satisfied:
(i) In the case of a proposed addition of a Seller,
each of the conditions set forth in Section 3.4 of the Receivables Sale
Agreement shall have been satisfied.
(ii) The Company shall have received copies of the
Policies of such additional Seller, which Policies shall be in form and
substance satisfactory to the Company.
(iii) The Company shall have received confirmation that
there is no pending or, to its knowledge after due inquiry, threatened action or
proceeding affecting such additional Seller before any Governmental Authority
(A) that could reasonably be expected to have a Material Adverse Effect or (B)
that purports to affect the legality, validity or enforceability of this
Supplement, the Agreement or any other Transaction Document or any of the
transactions contemplated hereby or thereby.
(iv) The Company and the Trustee shall have received
evidence that the Rating Agency Condition shall have been satisfied with respect
to the addition of such Seller.
(v) The Trustee shall have received Opinions of Counsel
of outside counsel addressed to the Trustee covering matters with respect to
such Seller as were covered in the opinions delivered on the Issuance Date with
respect to the original Sellers, including "true sale", non-substantive
consolidation and perfection opinions.
(vi) The Company and the Trustee shall have received a
certificate prepared by a Responsible Officer of the Servicer certifying that
after giving effect to the addition of such Seller, the Aggregate Target
Receivables Amount (including the pro forma effects of the historical
performance of the Receivables of such Seller) shall equal the Aggregate
Allocated Receivables Amount on the related Effective Date.
(b) Notwithstanding anything to the contrary contained in the
Receivables Sale Agreement, no Seller shall be terminated under Section 9.15 of
the Receivables Sale Agreement, in each case unless: (i) no Early Amortization
Event, Potential Early Amortization Event or Potential Purchase Termination
Event (as defined in the Receivables Sale Agreement)
43
(other than with respect to the Seller to be so terminated) will have occurred
and be continuing after giving effect to such termination and (ii) the Trustee
shall have received prior written notice of such termination (which notice shall
be accompanied by a pro forma Daily Report confirming that the Aggregate Target
Receivables Amount equals the Aggregate Allocated Receivables Amount, each
calculated after giving effect to such termination and excluding all Receivables
originated by the Seller to be terminated); provided, that in no event shall
General Cable Industries, Inc. be terminated as a Seller under Section 9.15 of
the Receivables Sale Agreement.
(c) Upon the termination of a Seller pursuant to Section 9.15
of the Receivables Sale Agreement and the foregoing paragraph (b), the
calculation (including, without limitation, for purposes of the pro forma
calculations pursuant to paragraph (b) above) of the Aggregate Target
Receivables Amount, the Aggregate Allocated Receivables Amount, the Series
2001-1 Required Reserves and all other amounts from which each such amount is
directly or indirectly derived shall exclude in each case the Receivables
originated by such terminated Seller.
ARTICLE IX
FINAL DISTRIBUTIONS
SECTION 9.1. CERTAIN DISTRIBUTIONS.
(a) Not later than 2:00 p.m., New York City time, on the
Distribution Date following the date on which the proceeds from the disposition
of the Receivables are deposited into the Series 2001-1 Non-Principal Collection
Sub-subaccount and the Series 2001-1 Principal Collection Sub-subaccount
pursuant to subsection 7.2(b) of the 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 Agreement, any distribution made pursuant to this Section shall be deemed
to be a final distribution pursuant to Section 9.3 of the Agreement with respect
to the Term Certificates.
{SIGNATURE PAGE TO SERIES 2001-1 SUPPLEMENT FOLLOWS}
44
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused this Series 2001-1 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: βββββββ β. βββββ
Title: Treasurer and Assistant Secretary
GENERAL CABLE INDUSTRIES, INC., in its
individual capacity and as Master Servicer
By:
-------------------------------
Name: βββββββ β. βββββ
Title: Vice President - Treasurer
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By:
-------------------------------
Name: ββββββββ βββββ
Title: Vice President
{SIGNATURE PAGE TO SERIES 2001-1 SUPPLEMENT}
45
Schedule 1
to Series 2001-1 Supplement
TRUST ACCOUNTS
============================================================
Account
-------
------------------------------------------------------------
Series 2001-1 Collection Subaccount
------------------------------------------------------------
Series 2001-1 Principal Collection Sub-subaccount
------------------------------------------------------------
Series 2001-1 Non-Principal Collection Sub-subaccount
------------------------------------------------------------
Series 2001-1 Accrued Interest Sub-subaccount
============================================================
S-1
EXHIBIT A
TO SERIES 2001-1 SUPPLEMENT
FORM OF CLASS A CERTIFICATE, SERIES 2001-1
(Global Certificate)
GENERAL CABLE 2001 MASTER TRUST
FLOATING RATE TRADE RECEIVABLES-BACKED
CERTIFICATE, SERIES 2001-1
DATED: May 9, 2001 CUSIP:
--------------------
REGISTERED Initial Invested Amount Represented
NO. A1- by this Certificate: $
--------- ----------
For Book-Entry Certificates only:
UNLESS THIS GLOBAL CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
For Book-Entry 144A Certificates only:
INTERESTS IN THIS GLOBAL CERTIFICATE MAY ONLY BE HELD BY QUALIFIED
INSTITUTIONAL BUYERS (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933,
AS AMENDED).
For Regulation S Temporary Certificates only:
A-1
THIS GLOBAL CERTIFICATE IS A TEMPORARY GLOBAL CERTIFICATE FOR
PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS TEMPORARY GLOBAL CERTIFICATE NOR
ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER
THE AGREEMENT REFERRED TO BELOW. NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL
CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF
THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY
STATE. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT SUCH
CERTIFICATE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY IN ACCORDANCE WITH ANY
APPLICABLE STATE SECURITIES LAWS, IN AN AMOUNT OF AT LEAST U.S. $250,000, AND
(1) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (INCLUDING A FOREIGN QUALIFIED INSTITUTIONAL BUYER) THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OR ACCOUNTS OF A QUALIFIED
INSTITUTIONAL BUYER (INCLUDING A FOREIGN QUALIFIED INSTITUTIONAL BUYER) TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
903 OR RULE βββ ββ ββββββββββ β, ββ THE FORM OF BENEFICIAL INTERESTS IN THE
APPLICABLE REGULATION S GLOBAL CERTIFICATE.
THIS CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
EACH PURCHASER AND SUBSEQUENT TRANSFEREE OF ANY CLASS A CERTIFICATE
(INCLUDING ANY PURCHASER OF AN INTEREST IN A BOOK-ENTRY CERTIFICATE) WILL BE
DEEMED BY SUCH PURCHASE OR ACQUISITION OF ANY SUCH CERTIFICATE TO HAVE
REPRESENTED AND WARRANTED ON EACH DAY FROM THE DATE ON WHICH THE PURCHASER
ACQUIRES SUCH INTEREST THROUGH AND INCLUDING THE DATE ON WHICH THE PURCHASER
DISPOSES OF SUCH INTEREST, EITHER THAT IT IS NOT AND WILL NOT BE (1) AN EMPLOYEE
BENEFIT PLAN (INCLUDING A GOVERNMENTAL PLAN WHICH IS SUBJECT TO ANY STATE OR
LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "INTERNAL REVENUE
CODE")), RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR βββββ PLAN
WHICH IS SUBJECT TO EITHER TITLE I OF ERISA, OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OR
A-2
(2) ANY ENTITY WHO IS A BENEFIT PLAN INVESTOR AS DEFINED IN DEPARTMENT OF LABOR
REG. Section 2510.3-101(f)(2), INCLUDING A GOVERNMENT PLAN WHICH IS SUBJECT TO
ANY FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS
OF SECTION 406 OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE.
Purchasers of this Class A Certificate will be deemed to have made
certain representations and warranties set forth in the Series 2001-1
Supplement.
This Class A 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
CEDE & CO
(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 2001-1 Supplement, dated as of May 9,
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 Class A 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 Class A Certificate and the Agreement, the Agreement
shall control in all respects.
A-3
A copy of the Agreement may be requested by writing to the Trustee at The Chase
Manhattan Bank, Attention: Institutional Trust Services. To the extent not
defined herein, the capitalized terms used herein have the meanings ascribed to
them in the Agreement.
This Class A Certificate is one of the Series 2001-1 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 2001-1
Certificates have been issued, with the intention that the Series 2001-1
Certificates will qualify under applicable tax law as indebtedness of the
Company. The Company and the Certificateholder, by its acceptance of this Class
A Certificate, agree to treat the Series 2001-1 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 Class A Certificates and references to Certificates
shall include beneficial interests in Certificates.
The Trust's assets are allocated in part to the Series 2001-1
Certificateholders with the remainder allocated to the Certificateholders of
other Series and to the Subordinated Certificate.
This Class A Certificate is one of a class of Certificates entitled
"General Cable 2001 Master Trust, Floating Rate Trade Receivables-Backed
Certificates, Series 2001-1," Class A (the "Class A Certificates"). Concurrent
with the issuance of the Class A Certificates, the Trust will issue an
additional class of Certificates entitled "General Cable 2001 Master Trust,
Floating Rate Trade Receivables-Backed Certificates, Series 2001-1," Class B
(the "Class B Certificates") and, together with the Class A Certificates, the
"Term Certificates"). The Term 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 2001-1 Collection Subaccounts and any
subaccounts thereof (the "Series 2001-1 Certificateholders' Interest").
Concurrent with the issuance of the Term Certificates, the Trust will also issue
a Subordinated Company Certificate entitled "General Cable 2001 Master Trust,
Series 2001-1 Subordinated Company Certificate" (the "Series 2001-1 Subordinated
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 2001-1 Certificateholders' Interest and not required to
be distributed to or for the benefit of the Term Certificateholders. The Trust's
assets are allocated in part to the Term Certificateholders, the holder of the
Series 2001-1 Subordinated Certificate, and to the Company as holder of the
Exchangeable Company Certificate.
Interest on the Class A Invested Amount will be distributed to the
Class A Certificateholders on each Distribution Date to the person in whose name
the Class A Certificate is registered at the close of business on the related
Record Date. The interest payable on each
A-4
Distribution Date shall be an amount equal to the product of (i) the Class A
Certificate Rate for the related Accrual Period, (ii) the Class A outstanding
principal amount on the first day of such Accrual Period (after giving effect to
any distributions of principal on such date) or in the case of the first
Distribution Date, the Initial Issuance Date and (iii) the actual number of days
in such Accrual Period divided by 360. Interest due but not paid on any
Distribution Date (the "Class A Interest Shortfall") will be due on the next
Distribution Date, together with interest on such amount equal to the product,
for the related Accrual Period (or portion thereof) until such Class A Interest
Shortfall is paid, of (A) the Class A Certificate Rate for such Accrual Period
ending on such Distribution Date; (B) such Class A Interest Shortfall (or the
portion thereof which has not been paid); and (C) the actual number of days in
such Accrual Period (or portion thereof) divided by 360.
On each Distribution Date during the Series 2001-1 Amortization Period,
a Series 2001-1 Monthly Principal Payment shall be made from amounts deposited
into the Series 2001-1 Principal Collection Sub-subaccount prior to the
preceding Settlement Report Date, first, pro rata to the Class A
Certificateholders until repayment in full of the Class A Invested Amount on
such date, and second, pro rata to the Class B Certificateholders until
repayment in full of the Class B Invested Amount. May 8, 2001 The Class A
Invested Amount may be otherwise reduced by distributions to the Class A
Certificateholders as set forth in the Agreement.
Distributions with respect to this Class A Certificate shall be paid by
the Trustee or its agent in immediately available funds to the holder hereof at
the registered address of such holder as provided to the Trustee. Final payment
of this Class A Certificate shall be made after due notice of such final
distribution delivered by the Trustee to the Class A Certificateholders in
accordance with the Agreement.
Final payment of this Class A Certificate shall be made only upon
presentation and surrender of this Class A Certificate at the office specified
in the notice of final distribution delivered by the Trustee to the Series
2001-1 Certificateholders in accordance with the Agreement.
This Class A 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 Class A 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 Term 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
A-5
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 Class A Certificate shall not
be entitled to any benefit under the Agreement, or be valid for any purpose.
THIS CLASS A CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAWS PROVISIONS.
SIGNATURE PAGES FOLLOW
A-6
IN WITNESS WHEREOF, the Company has caused this Class A Certificate to be
duly executed as of the date first above written.
GENERAL CABLE CAPITAL FUNDING, INC.
By:
----------------------------------
Name: βββββββ β. βββββ
Title: Treasurer and Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By:
---------------------------
Authorized Signatory
A-7
EXHIBIT B
TO SERIES 2001-1 SUPPLEMENT
FORM OF CLASS B CERTIFICATE, SERIES 2001-1
GENERAL CABLE 2001 MASTER TRUST
FLOATING RATE TRADE RECEIVABLES-BACKED
CERTIFICATE, SERIES 2001-1
DATED: May 9, 2001 CUSIP: _______________________
REGISTERED Initial Invested Amount Represented
NO. B-________ by this Certificate: $________
THIS CLASS B CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS
OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
SUCH CERTIFICATE MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY IN ACCORDANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS, IN AN AMOUNT OF AT LEAST U.S. $500,000,
AND IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OR
ACCOUNTS 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.
THIS CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY OR BY ANY OTHER PERSON.
THE CLASS B CERTIFICATES MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE
TRANSFERRED (ANY OF THE FOREGOING, A "TRANSFER") UNLESS THE TRANSFEROR AND
TRANSFEREE THEREOF DELIVER LETTERS, IN THE FORMS ATTACHED TO THE SERIES 2001-1
SUPPLEMENT, TO THE EFFECT THAT (i) IN THE CASE OF THE TRANSFEROR, SUCH
TRANSFEROR IS TRANSFERRING SUCH CLASS B CERTIFICATES TO SUCH TRANSFEREE, (ii) IN
THE CASE OF THE TRANSFEREE, (A) SUCH TRANSFEREE IS ACQUIRING SUCH CLASS B
CERTIFICATES FOR ITS OWN ACCOUNT, IS THE SOLE BENEFICIAL OWNER OF SUCH CLASS B
CERTIFICATES AND WILL REMAIN THE SOLE BENEFICIAL OWNER OF SUCH CLASS B
CERTIFICATES UNTIL SUCH CLASS B CERTIFICATES ARE TRANSFERRED AS PROVIDED IN THE
SERIES 2001-1 SUPPLEMENT, (B) SUCH TRANSFEREE IS NOT,
B-1
FOR FEDERAL INCOME TAX PURPOSES, A TRUST, ESTATE, PARTNERSHIP OR "S CORPORATION"
(AS DEFINED IN THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "INTERNAL
REVENUE CODE")) OR A "DISREGARDED ENTITY" THE BENEFICIAL OWNER OF WHICH IS ANY
OF THE FOREGOING, (C) SUCH TRANSFEREE IS A UNITED STATES PERSON (WITHIN THE
MEANING OF SECTION 7701(a)(30) OF THE INTERNAL REVENUE CODE), AND (D) SUCH
TRANSFEREE WILL NOT GRANT A PARTICIPATION IN OR OTHERWISE SIMILARLY SUBDIVIDE
ITS BENEFICIAL INTEREST IN SUCH CLASS B CERTIFICATES AND (iii) IN THE CASE OF
THE TRANSFEROR AND THE TRANSFEREE, SUCH CLASS B CERTIFICATES HAVE NOT BEEN
TRANSFERRED ON OR THROUGH AN "ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING
OF SECTION 7704(b) OF THE INTERNAL REVENUE CODE) AND SUCH TRANSFER OTHERWISE
CONFORMS TO THE REQUIREMENTS SET FORTH HEREIN AND IN THE SERIES 2001-1
SUPPLEMENT. FURTHER, NO TRANSFER OF A CLASS B CERTIFICATE SHALL BE EFFECTIVE IF,
WITHIN FIVE BUSINESS DAYS OF ITS RECEIPT OF THE CLASS B TRANSFEROR AND
TRANSFEREE LETTERS, THE TRANSFER AGENT AND REGISTRAR (AS DIRECTED BY THE
COMPANY) NOTIFIES THE PURPORTED TRANSFEROR AND TRANSFEREE OF ITS REFUSAL TO
RECORD SUCH TRANSFER IN ACCORDANCE WITH THE FOLLOWING SENTENCE. IF, WITHIN SUCH
FIVE BUSINESS DAY PERIOD, THE COMPANY NOTIFIES THE TRANSFER AGENT AND REGISTRAR
THAT THE COMPANY EITHER KNOWS OR HAS A REASONABLE GOOD FAITH BELIEF THAT ANY
REPRESENTATION MADE IN EITHER SUCH LETTER WAS UNTRUE OR INACCURATE AS OF THE
DATE MADE, THE TRANSFER AGENT AND REGISTRAR WILL REFUSE TO RECORD SUCH TRANSFER
AND WILL IMMEDIATELY NOTIFY THE PURPORTED TRANSFEROR AND TRANSFEREE OF SUCH
REFUSAL. IN ADDITION, (i) THE CLASS B CERTIFICATES MAY NOT BE TRANSFERRED
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, WHICH CONSENT WILL NOT BE
WITHHELD UNLESS THE COMPANY OBTAINS AN OPINION OF OUTSIDE COUNSEL TO THE EFFECT
THAT, IF THE CLASS B CERTIFICATES WERE CHARACTERIZED AS EQUITY INTERESTS IN A
PARTNERSHIP, THERE EXISTS A SIGNIFICANT RISK THAT SUCH TRANSFER WOULD RESULT IN
SUCH PARTNERSHIP BEING TREATED AS A PUBLICLY TRADED PARTNERSHIP TAXABLE AS A
CORPORATION (A "PTP") AND (ii) THE COMPANY MAY, BASED UPON AN OPINION OF OUTSIDE
COUNSEL, REQUIRE AS A CONDITION TO ANY TRANSFER OF A CLASS B CERTIFICATE, SUCH
LETTERS FROM THE TRANSFEROR AND/OR TRANSFEREE OF A CLASS B CERTIFICATE REGARDING
THE CIRCUMSTANCES OF SUCH TRANSFER AS SUCH COUNSEL BELIEVES REASONABLY NECESSARY
TO INSURE THAT, IF THE CLASS B CERTIFICATES WERE CHARACTERIZED AS EQUITY
INTERESTS IN A PARTNERSHIP, SUCH PARTNERSHIP WOULD NOT BE TREATED AS A PTP.
EACH PURCHASER AND SUBSEQUENT TRANSFEREE OF ANY CLASS B CERTIFICATE
(INCLUDING ANY PURCHASER OF AN INTEREST IN A BOOK-ENTRY CERTIFICATE) WILL BE
DEEMED TO REPRESENT AND WARRANT ON EACH DATE FROM THE DATE ON WHICH THE
PURCHASER ACQUIRES SUCH INTEREST
B-2
THROUGH AND INCLUDING THE DATE ON WHICH THE PURCHASER DISPOSES OF SUCH INTEREST,
THAT IT IS NOT AND WILL NOT BE (1) AN EMPLOYEE BENEFIT PLAN (INCLUDING A
GOVERNMENTAL PLAN WHICH IS SUBJECT TO ANY STATE OR LOCAL LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF THE EMPLOYEE
RETIREMENT SECURITY INCOME ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED ("INTERNAL REVENUE CODE")),
RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR βββββ PLAN WHICH PLAN
IS SUBJECT TO EITHER TITLE I OF ERISA, OR SECTION 4975 OF THE INTERNAL REVENUE
CODE, OR (2) ANY ENTITY WHO IS A BENEFIT PLAN INVESTOR AS DEFINED IN DEPARTMENT
OF LABOR REG. Section 2510.3-101(f)(2) (INCLUDING A GOVERNMENT PLAN WHICH IS
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE
PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE
CODE).
THE CLASS B CERTIFICATES ARE SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A CERTIFICATES AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT AND THE
SERIES 2001-1 SUPPLEMENT.
Purchasers of this Class B Certificate will be deemed to have made
certain representations and warranties set forth in the Series 2001-1
Supplement.
This Class B 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
B-3
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 2001-1 Supplement,
dated as of May 9, 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 Class B 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 Class B 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: Institutional Trust Services. To the extent not defined herein,
the capitalized terms used herein have the meanings ascribed to them in the
Agreement.
This Class B Certificate is one of the Series 2001-1 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 2001-1
Certificates have been issued, with the intention that the Series 2001-1
Certificates will qualify under applicable tax law as indebtedness of the
Company . The Company and the Certificateholder, by its acceptance of this
Certificate, agree to treat the Series 2001-1 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 the Certificateholders shall include
the beneficial owners of the Certificates and references to Certificates shall
include beneficial owners in Certificates.
The Trust's assets are allocated in part to the Series 2001-1
Certificateholders with the remainder allocated to the Certificateholders of
other Series and to the Subordinated Certificate.
This Class B Certificate is one of a class of Certificates entitled
"General Cable 2001 Master Trust, Floating Rate Class B Trade Receivables-Backed
Certificates, Series 2001-1 Class B" (the "Class B Certificates"). Concurrent
with the issuance of the Class B Certificates, the Trust will issue an
additional class of Certificates entitled "General Cable 2001 Master Trust,
Floating Rate Trade Receivables-Backed Certificates, Series 2001-1 Class A" (the
"Class A Certificates") and, together with the Class B Certificates, the "Term
Certificates"). The Term 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 2001-1 Collection Subaccounts and any subaccounts
thereof (the "Series 2001-1 Certificateholders' Interest").
B-4
Concurrent with the issuance of the Term Certificates, the Trust will also issue
a Subordinated Company Certificate entitled "General Cable 2001 Master Trust,
Series 2001-1 Subordinated Company Certificate" (the "Series 2001-1 Subordinated
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 2001-1 Certificateholders' Interest and not required to
be distributed to or for the benefit of the Term Certificateholders. The Trust's
assets are allocated in part to the Term Certificateholders, the holder of the
Series 2001-1 Subordinated Certificate, and to the Company as holder of the
Exchangeable Company Certificate.
Interest on the Class B Invested Amount will be distributed to the Class
B Certificateholders on each Distribution Date to the person in whose name the
Class B Certificate is registered at the close of business on the related Record
Date. The interest payable on each Distribution Date shall be an amount equal to
the product of (i) the Class B Certificate Rate for the related Accrual Period,
(ii) the Class B outstanding principal amount on the first day of such Accrual
Period (after giving effect to any distributions of principal on such date) or
in the case of the first Distribution Date, the Initial Issuance Date and (iii)
the actual number of days in such Accrual Period divided by 360. Interest due
but not paid on any Distribution Date (the "Class B Interest Shortfall") will be
due on the next Distribution Date, together with interest on such amount equal
to the product, for the related Accrual Period (or portion thereof) until such
Class B Interest Shortfall is paid, of (A) the Class B Certificate Rate for such
Accrual Period ending on such Distribution Date; (B) such Class B Interest
Shortfall (or the portion thereof which has not been paid); and (C) the actual
number of days in such Accrual Period (or portion thereof) divided by 360.
On each Distribution Date during the Series 2001-1 Amortization Period,
a Series 2001-1 Monthly Principal Payment shall be made from amounts deposited
into the Series 2001-1 Principal Collection Sub-subaccount prior to the
preceding Settlement Report Date, first, pro rata to the Class A
Certificateholders until repayment in full of the Class A Invested Amount on
such date, and second, pro rata to the Class B Certificateholders until
repayment in full of the Class B Invested Amount. The Class B Invested Amount
may be otherwise reduced by distributions to the Class B Certificateholders as
set forth in the Agreement.
Distributions with respect to this Class B Certificate shall be paid by
the Trustee or its agent in immediately available funds to the holder hereof at
the registered address of such holder as provided to the Trustee. Final payment
of this Class B Certificate shall be made after due notice of such final
distribution delivered by the Trustee to the Class B Certificateholders in
accordance with the Agreement.
Final payment of this Class B Certificate shall be made only upon
presentation and surrender of this Class B Certificate at the office specified
in the notice of final distribution delivered by the Trustee to the Series
2001-1 Certificateholders in accordance with the Agreement.
This Class B Certificate does not represent an obligation of, an
interest in or a guaranty by
B-5
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 Class B
Certificate is limited in right of payment as more specifically set forth in the
Agreement.
A transfer of this Class B 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 Term 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 Class B Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
THIS CLASS B CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAWS PROVISIONS.
SIGNATURE PAGES FOLLOW
B-6
IN WITNESS WHEREOF, the Company has caused this Class B Certificate to be
duly executed as of the date first above written.
GENERAL CABLE CAPITAL FUNDING, INC.
By:
-----------------------------------
Name: βββββββ β. βββββ
Title: Treasurer and Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Trustee
By:
--------------------------------
Authorized Signatory
B-7
EXHIBIT C
TO SERIES 2001-1 SUPPLEMENT
FORM OF SERIES 2001-1 COMPANY SUBORDINATED CERTIFICATE
GENERAL CABLE 2001 MASTER TRUST
SERIES 2001-1 COMPANY SUBORDINATED CERTIFICATE
DATED: May 9, 2001
THIS SUBORDINATED CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THE SUBORDINATED 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 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 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE TERM
CERTIFICATES AS DESCRIBED IN THE MASTER POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
This Subordinated 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 Investors' Interest, pursuant to the 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
C-1
and among the Transferor, General Cable Industries, Inc., as Master Servicer,
and The Chase Manhattan Bank, as trustee (the "Trustee") as supplemented by the
Series 2001-1 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 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: Institutional Trust Services. Capitalized terms defined in the
Agreement and used herein without definition have the meanings ascribed to them
in the Agreement.
This Subordinated Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the holder
of this Subordinated Certificate by virtue of its acceptance hereof assents and
is bound.
This Subordinated Certificate is the Subordinated Company Certificate
entitled "Series 2001- 1 Subordinated Certificate" (the Subordinated
Certificate") representing a fractional undivided interest in the assets of the
Trust consisting of the right to receive Collections allocated to the
Certificateholders' Interest and not required to be distributed to or for the
benefit of the Term Certificateholders. Concurrent with the issuance of the
Subordinated Certificate, the Trust shall also issue two Classes of Certificates
entitled "General Cable 2001 Master Trust, Floating Rate Trade
Receivables-Backed Participation Certificate, Series 2001-1, Class A" (the
"Class A Certificates") and "General Cable 2001 Master Trust, Floating Rate
Class B Trade Receivables-Backed Certificate, Series 2001-1, Class B" (the
"Class B Certificates" and, together with the Class A Certificates, the "Term
Certificates"). The Term 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 2001-1 Certificateholders'
Interest". The Trust's assets are allocated in part to the Term
Certificateholders and the Subordinated 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 Certificate at
any time in the assets of the Trust shall not exceed an amount equal to the
Subordinated Certificate Amount at the time. The Subordinated Certificate Amount
on any date of determination shall be an amount equal to the Series 2001-1
Allocated Receivables amount on such date minus the Series 2001-1 Adjusted
Invested Amount on such date.
Distributions with respect to this Subordinated Certificate shall be
paid monthly, but only to the extent provided under the Agreement, on each
Distribution Date by the Trustee, to the
C-2
holder of the Subordinated Certificate. Final payment of this Subordinated
Certificate shall be made only upon presentation and surrender of this
Subordinated Certificate at the office or agency specified in the notice of the
final distribution delivered by the Trustee to the holder of the Subordinated
Certificate in accordance with the Agreement.
This Subordinated 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 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 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 PROVISIONS.
SIGNATURE PAGES FOLLOW
C-3
IN WITNESS WHEREOF, the Company has caused this Subordinated Certificate
to be duly executed as of the date first above written.
GENERAL CABLE CAPITAL FUNDING, INC.
By:
----------------------------------
Name: βββββββ β. βββββ
Title: Treasurer and Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Subordinated Certificate referred to in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Trustee
By:
---------------------------------
Authorized Signatory
C-4
EXHIBIT D
TO SERIES 2001-1 SUPPLEMENT
FORM OF DAILY REPORT
D-1
EXHIBIT E
TO SERIES 2001-1 SUPPLEMENT
FORM OF MONTHLY SETTLEMENT STATEMENT
E-1
EXHIBIT F-1
TO SERIES 2001-1 SUPPLEMENT
FORM OF PURCHASER LETTER TO BE DELIVERED BY CLASS B PURCHASERS
The Chase Manhattan Bank as Transfer Agent and Registrar βββ ββββ ββββ ββββββ
βββ ββββ, ββ βββββ Attention: Institutional Trust Services
General Cable Capital Funding, Inc.
ββββ β. ββββββ ββββββ
βββββ ββββ
ββββββββββ, ββ βββββ
We are delivering this letter in connection with a purchase/transfer of
$___________ of the Floating Rate Trade Receivables-Backed Certificates, Series
2001-1, Class B (the "Certificates") issued by General Cable 2001 Master Trust
(the "Trust") created under the Master Pooling and Servicing Agreement, dated as
of May 9, 2001 (the "Pooling Agreement") among General Cable Capital Funding,
Inc., a Delaware corporation (the "Company"), General Cable Industries, Inc., a
Delaware corporation ("GCI"), and The Chase Manhattan Bank, as trustee (the
"Trustee"), and the Series 2001-1 Supplement, dated as of May 9, 2001 (the
"Supplement"), to the Pooling Agreement among the Company, GCI and the Trustee.
Capitalized Terms used herein without definition shall have the meanings given
to them in the Pooling Agreement and the Supplement.
We hereby confirm that:
(i) we are taking delivery of the Certificates in an amount of at
least U.S. $500,000 for our own account;
(ii) we are not and will not be an ERISA Entity.
We have received a copy of the Offering Memorandum dated _____ __, 2001
(the "Memorandum") and we have been afforded access to information to enable us
to evaluate our investment in the Certificates and we acknowledge receipt of
such information and further acknowledge that we have been afforded the
opportunity (i) to ask such questions as we have deemed necessary of, and to
receive answers from, representatives of the Company or persons acting on its
behalf concerning the terms and conditions of the offering of the Certificates
and the merits and risks of investing in the Certificates and (ii) to obtain
such additional information which the Company possesses or can acquire without
unreasonable effort or expense that is necessary to verify the accuracy and
completeness of the information.
We understand that the Certificates are being offered in a transaction not
involving any public offering within the meaning of the Securities Act and that
the Certificates have not been registered under the Securities Act, and we
agree, on our own behalf and on behalf of each
F-1-1
account for which we acquire any Certificates, that such Certificates may be
resold, pledged or transferred only in a transaction meeting the requirements of
Rule 144A ("Rule 144A") under the Securities Act, to a person who we reasonably
believe is a "qualified institutional buyer" (as defined in Rule 144A) that
purchases for its own account or for the account or accounts 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.
We understand that the Transfer Agent and Registrar will not be required
to accept for registration or transfer any Certificates, except upon
presentation of evidence satisfactory to the Company that the foregoing
restrictions on transfer have been complied with. We further understand that any
Certificates purchased by us will be in the form of definitive physical
certificates and that such Certificates will, for so long as required by
applicable law, bear a legend reflecting the substance of the foregoing
restrictions on transfer.
We acknowledge that the Transfer Agent and the Registrar and the Company
will rely upon our confirmations, acknowledgments and agreements set forth
herein.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
-----------------------------------
(Name of Purchaser)
By:
--------------------------------
Name:
Title:
Address:
F-1-2
EXHIBIT F-2
TO SERIES 2001-1 SUPPLEMENT
FORM OF CLASS B TRANSFEROR LETTER TO BE DELIVERED IN CONNECTION
WITH TRANSFERS OF CLASS B CERTIFICATES
The Chase Manhattan Bank
as Transfer Agent and Registrar
βββ ββββ ββββ ββββββ
βββ ββββ, ββ βββββ
Attention: Institutional Trust Services
General Cable Capital Funding, Inc.
ββββ β. ββββββ ββββββ
βββββ ββββ
ββββββββββ, ββ βββββ
We are delivering this letter in connection with a purchase of transfer
of $___________ of the Trade Receivables-Backed Certificates, Series 2001-1,
Class B (the "Certificates") issued by General Cable 2001 Master Trust (the
"Trust") created under the Pooling and Services Agreement, dated as May 9,
2001 (the "Pooling Agreement") among General Cable Capital Funding, Inc., a
Delaware corporation (the "Company"), General Cable Industries, Inc., a
Delaware corporation ("GCI"), and The Chase Manhattan Bank, as trustee (the
"Trustee"), and the Series 2001-1 Supplement, dated as of May 9, 2001 (the
"Series 2001-1 Supplement"), to the Pooling Agreement among the Company, GCI
and the Trustee. Capitalized Terms used herein without definition shall have
the meanings given to them in the Pooling Agreement.
Transferee hereby represents and warrants that:
(i) Transferee has acquired $________ of Class B Certificates
from Name of Transferor ("Transferor") on _______ ___, ____ for its own
account, Transferee is the sole beneficial owner of such Class B Certificates
and Transferee will remain the sole beneficial owner of such Class B
Certificates until such Class B Certificates are transferred pursuant to the
Pooling Agreement;
(ii) Transferee is not a trust, estate, partnership, or "S
Corporation" (within the meaning of Section 1361(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), for United States federal income tax
purposes or a "disregarded entity" the beneficial owner of which is any of the
foregoing;
F-2-1
(iii) Transferee is a United States Person (within the meaning
of section 7701(a)(30) of the Code);
(iv) Transferee will not grant a participation in or otherwise
similarly subdivide its beneficial interest in such Class B Certificates;
(v) Such Class B Certificates have not been transferred on or
through an "established securities market" within the meaning of Section 7704(b)
of the Code;
(vi) Such transfer otherwise conforms to the requirements set
forth in the Pooling Agreement and in the Series 2001-1 Supplement;
(vii) Transferee is not and will not be (1) an employee benefit
plan or plan which is subject to Title I of ERISA and/or Section 4975 of the
Code (including, without limitation, a governmental plan which is subject to any
federal, state or local law that is substantially similar to the provisions of
Section 406 of ERISA or Section 4975 of the Code), or (2) any entity who is a
"benefit plan investor" as defined in Department of Labor Reg. Section
2510.3-101(f)(2); and
(viii) Transferee will not transfer the Class B Certificates
described herein to any person, except as permitted by the legend set forth on
the Class B Certificates.
In addition, by signing this Class B Transferee Letter, Transferee
hereby acknowledges that the Transfer Agent and Registrar may refuse to register
Transferor's transfer of the Class B Certificates described herein to
Transferee, and consequently, such transfer shall not be effective, if (x) the
Company has notified the Transfer Agent and Registrar that the Company either
knows or has a reasonable, good faith belief, that any representation made
herein or in the related Class B Transferor Letter was untrue or inaccurate as
of the date made and (y) the Transfer Agent and Registrar properly notifies
Transferor and Transferee of its refusal to record such transfer of the Class B
Certificates within the time allowed for providing such notification.
(Name of Purchaser)
By:
----------------------------
Name:
Title:
Address:
F-2-2
EXHIBIT G
TO SERIES 2001-1 SUPPLEMENT
RESERVED
G-1
EXHIBIT H
TO SERIES 2001-1 SUPPLEMENT
RESERVED
H-1
EXHIBIT I
TO SERIES 2001-1 SUPPLEMENT
FORM OF CERTIFICATE FOR EXCHANGE OR TRANSFER FROM
TEMPORARY REGULATION S GLOBAL CERTIFICATE TO PERMANENT
REGULATION S GLOBAL CERTIFICATE
Euroclear and Clearstream Banking
Re: General Cable 2001 Master Trust
Floating Rate Trade Receivables-Backed Certificates
Series 2001-1, Class A (the "Securities")
CUSIP No._____ ISIN:_________
Reference is made to the General Cable 2001 Master Trust (the "Trust")
created under the Master Pooling and Servicing Agreement dated as of May __,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Pooling Agreement"), 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, as trustee (the "Trustee"), and the Series 2001-1 Supplement, dated as of
May __, 2001 (as amended, supplemented or otherwise modified from time to time
the "Series 2001-1 Supplement"), to the Pooling Agreement, among the Company,
the Master Servicer and the Trustee. Capitalized terms used herein without
definition shall have the meanings given to them in the Pooling Agreement and
the Series 2001-1 Supplement.
(a) For purposes of acquiring a beneficial interest in the Permanent
Regulation S Global Certificate upon the expiration of the Distribution
Compliance Period, For purposes of receiving payments under the Temporary
Regulation S Global Certificate , the undersigned holder of a beneficial
interest in the Temporary Regulation S Global Certificate issued under the
Pooling Agreement and the Series 2001-1 Supplement certifies that as of the date
hereof, and except as set forth below, the above-captioned Securities:
(i) are owned by persons that are not citizens or residents of
the United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to the United States Federal income
taxation regardless of its source ("United States persons");
(ii) are owned by United States person(s) that (a) are foreign
branches of a United States financial institution (as defined in U.S. Treasury
Regulations Section
I-1
1.165- 12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent, that you may advise the issuer or the issuer's agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1. 163- 5(c)(2)(i)(D)(7)), and in addition
if the owner of the Securities is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
(b) If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below:
(i) in the case of debt securities, the Securities are
beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased
the Securities in transactions which did not require registration under the Act;
or (ii) in the case of equity securities, the Securities are owned by (x)
non-U.S. person(s)(and such person(s) are not acquiring the Securities for the
account or benefit of U.S. person(s)) or (y) U.S. person(s) who purchased the
Securities in a transaction which did not require registration under the Act. As
used in this paragraph the term "U.S. person" has the meaning given to it by
Regulation S under the Act.
(c) As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
(d) We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
(e) This certification excepts and does not relate to $_______ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
I-2
(f) We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
Date: ________________200_. Not earlier than 15 days prior to the Certification
Event to which the certification relates.
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
As, or as agent for, the beneficial owner(s) of the Securities to which this
certificate relates.
I-3
Exhibit J
TO SERIES 2001-1 SUPPLEMENT
FORM OF EUROCLEAR/CLEARSTREAM BANKING CERTIFICATE
The Chase Manhattan Bank, as Trustee
βββ ββββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Re: General Cable 2001 Master Trust
Floating Rate Trade Receivables-Backed Certificates
Series 2001-1, Class A (the "Securities")
(a) This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Master Pooling and Servicing Agreement dated as
of May 9, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Pooling Agreement"), 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, as trustee (the "Trustee"), and the Series 2001-1 Supplement, dated as of
May 9, 2001 (as amended, supplemented or otherwise modified from time to time,
the "Series 2001-1 Supplement"), to the Pooling Agreement, among the Company,
the Master Servicer and the Trustee, as of the date hereof, the principal amount
of the above-captioned Securities:
(i) is owned by persons that are not citizens or residents of
the United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States persons");
(ii) is owned by United States persons that (a) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1. 165-12(c)(1)(v) ("financial institutions")) purchasing
for their own account or for resale, or (b) acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
has agreed, on its own behalf or through its agent, that we may advise the
Issuer or the Issuer's agent that it will comply with the requirements of
Section 1650(3)(,A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder); or
J-1
(iii) is owned by United States or foreign financial institutions
for purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1. 163- 5(c)(2)(i)(D)(7)), and to the further effect that
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
(b) If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act") then this is also to certify with respect to the principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Pooling Agreement or the Series 2001-1 Supplement.
(c) We further certify:
(i) that we are not making available herewith for exchange (or,
if relevant, exercise of any rights or collection of any interest) any portion
of the Temporary Global security excepted in such certifications; and
(ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights or
collection of any interest) are no longer true and cannot be relied upon as the
date hereof.
(d) We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
Dated:____________, 200_
EUROCLEAR BANKING
CLEARSTREAM BANKING, societe anonyme
By:
-------------------------------
Name:
Title:
J-2