EXHIBIT 10.35
RECEIVABLES PURCHASE TERMINATION
AND REASSIGNMENT AGREEMENT
THIS RECEIVABLES PURCHASE TERMINATION AND REASSIGNMENT AGREEMENT (this
"Agreement") is made and entered into as of August 30, 2002, among
MANUFACTURERS AND TRADERS TRUST COMPANY, not individually but solely as trustee
(the "Trustee") for the AVONDALE RECEIVABLES MASTER TRUST (the "Trust"),
AVONDALE RECEIVABLES COMPANY (the "Receivables Subsidiary"), AVONDALE ▇▇▇▇▇,
INC. ("Avondale ▇▇▇▇▇" or the "Originator"), FALCON ASSET SECURITIZATION
CORPORATION ("FALCON"), as the "Purchaser" under the "Certificate Purchase
Agreement" (as defined below) and BANK ONE, N.A. (formerly known as The First
National Bank of Chicago) as the "Support Bank" and as "Agent" under the
Certificate Purchase Agreement.
STATEMENT OF FACTS
I. Pursuant to that certain Receivables Purchase
Agreement, dated as of April 29, 1996 (as amended, restated, supplemented or
otherwise modified from time to time, the "Receivables Purchase Agreement"),
between the Receivables Subsidiary and the Originator, the Receivables
Subsidiary has purchased from time to time from the Originator certain
receivables and related assets resulting from the sale of goods or the
provision of services to customers of the Originator.
II. Pursuant to that certain Avondale Receivables Master
Trust Pooling and Servicing Agreement, dated as of April 29, 1996 (as amended,
restated, supplemented or otherwise modified from time to time, the "Pooling
Agreement"), among the Receivables Subsidiary, Avondale ▇▇▇▇▇, as servicer
thereunder (the "Servicer") and the Trustee, the Receivables Subsidiary has
transferred the "Transferred Assets" (as defined therein) to the Trustee.
III. Pursuant to that certain Amended and Restated
Certificate Purchase Agreement (Series 1996-1), dated as of November 21, 1997
(as amended, restated, supplemented or otherwise modified from time to time,
the "Certificate Purchase Agreement"), among the Receivables Subsidiary, the
Servicer, FALCON, the Support Bank and the Agent, FALCON, and the Support Bank
purchased certain fractional undivided interests in the Trust and the
Transferred Assets, which interests are evidenced by the Series 1996-1
Certificates (the "Certificates" and, together with the Transferred Assets, the
"Overall Receivables Assets"), issued pursuant to the Amended and Restated
Series 1996-1 Supplement to the Pooling Agreement dated as of November 21, 1997
(the "Series Supplement"), among the Receivables Subsidiary, the Servicer and
the Trustee.
IV. The parties hereto desire to terminate the
Receivables Purchase Agreement, the Pooling Agreement, the Certificate Purchase
Agreement, each Transaction
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Document and each other agreement, instrument, certificate and document
executed or furnished in connection therewith (including without limitation,
each Buyer Note and each agreement relating to any lockbox account, collection
account or blocked account into which any collections on or proceeds of any
Transferred Assets are deposited) (collectively, the "Transaction Agreements")
and to provide for (a) the release of all interests (including, without
limitation, each security interest, if any) held by each of FALCON, the Support
Bank and the Agent in the Overall Receivables Assets and the reconveyance of
such Overall Receivables Assets to the Receivables Subsidiary, (b) the release
of all interests (including, without limitation, each security interest) held
by the Trustee in the Transferred Assets and the reconveyance of such
Transferred Assets to the Receivables Subsidiary and (c) the release of all
interests (including, without limitation, each security interest) held by the
Receivables Subsidiary in the Transferred Assets and the reconveyance of such
Transferred Assets to the Originator, all in accordance with and subject to the
terms and conditions of this Agreement.
V. The parties hereto hereby acknowledge that the
Originator plans to sell or otherwise convey some or all of the Transferred
Assets to Avondale Funding, LLC ("Funding") on or after the date hereof
pursuant to one or more receivables sale agreements, that Funding plans to
convey some or all of such property to Redwood Receivables Corporation
("Redwood") pursuant to a receivables purchase and sale agreement and that
General Electric Capital Corporation ("GECC") from time to time acts as an
administrative agent for Redwood.
STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the mutual covenants
herein set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Definitions. Unless otherwise expressly defined
herein, all capitalized terms used herein shall have the respective meanings
given such terms (a) in the Certificate Purchase Agreement, (b) if not defined
in the foregoing, in the Pooling Agreement, (c) if not defined in the
foregoing, in the Receivables Purchase Agreement, or (d) if not defined in the
foregoing, in the other Transaction Agreements.
2. Release of Interests by the Agent, FALCON and the
Support Bank. (a) The total obligations due to the Agent, the Support Bank and
FALCON, if paid to the Agent on or before 3:00 p.m. (New York City time) on
August 30, 2002 (the "Expected Payoff Date"), will be $64,569,534.30 (the
"Payoff Amount"), which amounts include all outstanding principal, accrued
interest, fees, expenses, costs, liquidated damages and other amounts, if any,
which are due and payable by the Receivables Subsidiary, the Trust, the
Trustee, the Originator, the Servicer and each Affiliate of the Receivables
Subsidiary, the Trust, the Trustee, the Originator and the Servicer
(collectively, the "Receivables Seller Parties") to the Agent, the Support Bank
and FALCON pursuant to the Transaction Agreements, which amount will also
include, without limitation, all costs and expenses incurred by the Agent, the
Support Bank and FALCON in connection with the negotiation and execution of
this Agreement and the transactions contemplated herein. If the payment of the
Payoff Amount does not occur before 3:00 p.m.
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(New York City time) on the Expected Payoff Date, (i) the Originator will
designate a new date for payment of the Payoff Amount, (ii) the Agent will, no
later than 5:00 p.m. on the Business Day immediately before such new payoff
date, recalculate the Payoff Amount by written notice to the other parties
hereto to reflect additional accrued and unpaid interest (calculated at the
Corporate Base Rate as described in the Series Supplement), plus fees and
expenses and (iii) such recalculation shall, absent timely objection from the
Originator, be conclusive evidence of such Payoff Amount.
(b) Payment of the Payoff Amount shall be made by and on
behalf of the Receivables Seller Parties by way of a wire transfer of
immediately available funds to the following account (the "Termination Payment
Account"):
Bank Name: Manufactures and Traders Trust
Company
City and State: Buffalo, New York
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account Number: 185621133
Reference: Attention: Trust Division/CC880
The Trustee will withdraw an amount equal to the Payoff Amount from the
Termination Payment Account and distribute such amount to the Agent (on behalf
of itself, FALCON and the Support Bank) by wire transfer of immediately
available funds to be made to the same account to which the Trustee currently
wires payments of interest and principal on the Certificates.
(c) Subject to the terms and conditions of this
Agreement and in consideration of the payment in full of the Payoff Amount in
immediately available funds, the Agent, on behalf of itself, the Support Bank
and Falcon, hereby (i) acknowledges and agrees that payment of the Payoff
Amount will constitute payment in full of all obligations of the Receivables
Seller Parties under the Transaction Agreements and that, upon payment of the
Payoff Amount as described above, the Transaction Documents will automatically
terminate and that none of the Receivables Seller Parties or any guarantor or
obligor of any such Person shall have any further obligation or liability to
the Agent, FALCON or the Support Bank under the Transaction Agreements, except
for indemnities and such other obligations that by the express terms of the
Transaction Agreements survive the termination thereof, (ii) represents and
warrants that FALCON has not assigned to any other Person any of its rights as
the "Purchaser" under the Certificate Purchase Agreement and that Bank One has
not assigned to any other Person any of its rights as the "Support Bank" under
the Certificate Purchase Agreement and (iii) represents and warrants that the
interests being reconveyed hereunder by the Agent, the Support Bank and FALCON
are in each case reconveyed free and clear of any lien or security interest
created by the Agent, the Support Bank or Falcon. The Agent, for itself and on
behalf of FALCON and the Support Bank, further agrees that, concurrently with
its receipt of the Payoff Amount in immediately available funds, all security
interests and liens, if any, that each Receivables Seller Party or any
guarantor or obligor of the obligations under the Transaction Agreements have
granted to the Agent, FALCON and the Support Bank with respect to the
transactions contemplated by the Transaction Agreements, whether or not
specifically referred to herein, shall be automatically released. FALCON and
the Support Bank hereby expressly acknowledge and agree that payment of the
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Payoff Amount to the Agent as described above will constitute payment in full
of all obligations of the Receivables Seller Parties to FALCON and the Support
Bank under the Transaction Agreements, except for indemnities and such other
obligations that by the express terms of the Transaction Agreements survive the
termination thereof, and that, upon such payment, FALCON and the Support Bank
will look solely to the Agent for receipt of any portion of the Payoff Amount
owed to them and none of the Receivables Seller Parties or any guarantor or
obligor of any such Person shall have any further obligation or liability to
FALCON or the Support Bank under the Transaction Agreements, except for
indemnities and such other obligations that by the express terms of the
Transaction Agreements survive the termination thereof.
(d) Immediately upon the payment of the Payoff Amount in
immediately available funds as described above, the Agent, on behalf of itself,
FALCON and the Support Bank, and the Trustee each hereby authorizes each
Receivables Seller Party, Funding, Redwood and GECC to file and record
termination statements with respect to each financing statement in favor of the
Trustee, the Agent, FALCON and the Support Bank described on Schedule I and
such other financing statements which evidence the liens and security interests
granted in connection with the transactions contemplated by the Transaction
Documents and may be of record in favor of the Trustee, the Agent, FALCON and
the Support Bank; the Agent will deliver (or cause to be delivered) to the
Trustee the originals of each Certificate for surrender and cancellation; and
the Agent will deliver, at the expense of the Receivables Seller Parties but in
no event at the expense of the Trustee, the Agent, Falcon or the Support Bank,
such other termination statements or documents as any Receivables Seller Party
may reasonably request in connection with the Trustee's, Agent's, FALCON's and
the Support Bank's above-described release of the security interests and liens
granted to the Trustee, the Agent, FALCON or the Support Bank pursuant to the
Transaction Agreements.
3. Reconveyance by the Trust. (a) Subject to the terms
and conditions of this Agreement, the Receivables Subsidiary will, concurrently
with the payment of the Payoff Amount to the Termination Payment Account in
immediately available funds as described above, be automatically deemed without
the need for any further action to have contributed an amount equal to the
Payoff Amount (the "Contribution") to the Trust and, the Trust, upon receipt of
such Contribution, hereby assigns, transfers, and conveys to the Receivables
Subsidiary, in consideration of the Receivables Subsidiary's interests in the
Trust, without recourse, except as specifically set forth herein, and the
Receivables Subsidiary hereby accepts and receives, all of the Trustee's and
the Trust's rights, titles and interests in and to the Transferred Assets
transferred by the Receivables Subsidiary to the Trustee (on behalf of the
Trust) pursuant to the Pooling Agreement.
(b) The Trust, without recourse, except as specifically
set forth herein, hereby (i) represents and warrants that the Series 1996-1
Certificates were the only "Certificates" issued by the Trust, (ii) agrees that
upon receipt by the Trust of the Contribution by the Receivables Subsidiary,
all of the Transaction Agreements shall automatically terminate and that
neither the Receivables Subsidiary nor any Affiliate of the Receivables
Subsidiary nor any guarantor or obligor of any such Person shall have any
further obligation or liability to the Trust under the Transaction Agreements,
except for indemnities and such other obligations that by the express
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terms of the Transaction Agreements survive the termination thereof and (iii)
represents and warrants that the Trustee has not granted any lien or security
interest in any of the Transferred Assets to any Person other than through the
issuance of Certificates to the Agent, FALCON and the Support Bank. The
Servicer hereby represents and warrants that (i) except as set forth herein,
the Trust has no liens against or security interests in the capital stock or
other equity interests in the Receivables Subsidiary or any Affiliate of the
Receivables Subsidiary or their respective personal or real property securing
the obligations of the Receivables Subsidiary or any Affiliate of the
Receivables Subsidiary to the Trust under the Transaction Agreements, (ii) the
UCC filings described on Schedule I hereto describe all of the UCC filings
filed in connection with the transactions contemplated by the Transaction
Documents against the Receivables Subsidiary and each Affiliate of the
Receivables Subsidiary in favor of the Trust with respect to the transactions
contemplated by the Transaction Agreements and (iii) other than as set forth on
Schedule I, no filing in connection with the transactions contemplated by the
Transaction Documents has been made with respect to any obligation of the
Receivables Subsidiary or any Affiliate of the Receivables Subsidiary under any
of the Transaction Agreements or with respect to any collateral or security
therefor. The Trust further agrees that, concurrently with its receipt of the
Contribution from the Receivables Subsidiary as provided in Section 3(a) above,
all security interests and liens that the Receivables Subsidiary or any
Affiliate of the Receivables Subsidiary or any guarantor or obligor of the
obligations under the Transaction Agreements have granted to the Trust, whether
or not specifically referred to herein, shall be automatically released.
(c) Upon receipt of the Contribution and concurrently
with the reconveyance of the Transferred Assets as described in Section 3(a)
above, the Trust hereby authorizes the Receivables Subsidiary, the Originator,
Funding, Redwood and GECC to file and record termination statements with
respect to each financing statement described on Schedule I and such other
financing statements as may be of record with respect to the Receivables
Subsidiary or any other Receivables Seller Party in favor of the Trust, and the
above-mentioned release documents; and the Trustee, on behalf of the Trust,
will execute such other termination statements or documents as the Receivables
Subsidiary, the Originator, Funding, Redwood or GECC may reasonably request in
connection with the Trust's above-described release of the security interests
and liens granted to the Trust pursuant to the Transaction Agreements; provided
that such other documents shall be prepared by the requesting party at the
expense of the Receivables Seller Parties and in no event at the expense of the
Trustee, the Agent, Falcon or the Support Bank.
4. Reconveyance by the Receivables Subsidiary. (a)
Subject to the terms and conditions of this Agreement, and in consideration of
the Originator's payment of the Payoff Amount to the Trustee on behalf of the
Receivables Subsidiary, concurrently with and upon the reconveyance of the
Transferred Assets to the Receivables Subsidiary as described in Section 3
above, the Receivables Subsidiary hereby sells, assigns, transfers, and conveys
to the Originator, without recourse, except as specifically set forth herein,
and the Originator hereby accepts, purchases and receives, all of the
Receivables Subsidiary's rights, titles and interests in and to the Transferred
Assets (collectively, the "Reconveyed Property") transferred by the Originator
to Receivables Subsidiary pursuant to the Receivables Purchase Agreement. The
Originator and the Receivables Subsidiary intend, concurrently with and upon
the reconveyance of the Reconveyed Property, to merge the Receivables
Subsidiary with and into the Originator.
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(b) The Receivables Subsidiary, without recourse, except
as specifically set forth herein, hereby (i) represents and warrants that
except as set forth herein, the Receivables Subsidiary has no liens against or
security interests in the capital stock or other equity interests in the
Originator or any Affiliate of the Originator or their respective personal or
real property securing the obligations of the Originator or any Affiliate of
the Originator to the Receivables Subsidiary under the Transaction Agreements,
(ii) agrees that payment of the Payoff Amount to the Trustee in immediately
available funds as described above shall be deemed payment to the Receivables
Subsidiary and that, upon such receipt, all of the Transaction Agreements shall
automatically terminate and that neither the Originator nor any Affiliate of
the Originator nor any guarantor or obligor of any such Person shall have any
further obligation or liability to the Receivables Subsidiary under the
Transaction Agreements, except for indemnities and such other obligations that
by the express terms of the Transaction Agreements survive the termination
thereof, (iii) represents and warrants that the UCC filings described on
Schedule I hereto describe all of the UCC filings filed in connection with the
transactions contemplated by the Transaction Documents against the Originator
and each Affiliate of the Originator in favor of the Receivables Subsidiary
with respect to the transactions contemplated by the Transaction Agreements,
(iv) represents and warrants that the Receivables Subsidiary has not granted
any lien or security interest in any of the Transferred Assets to any Person
other than the Trust, and (v) represents and warrants that other than as set
forth on Schedule I, no filing in connection with the transactions contemplated
by the Transaction Documents has been made with respect to any obligation of
the Originator or any Affiliate of the Originator under any of the Transaction
Agreements or with respect to any collateral or security therefor. The
Receivables Subsidiary further agrees that, concurrently with its receipt from
the Originator of the Payoff Amount as described above, all security interests
and liens that the Originator or any Affiliate of the Originator or any
guarantor or obligor of the obligations under the Transaction Agreements have
granted to the Receivables Subsidiary, whether or not specifically referred to
herein, shall be automatically released.
(c) Upon payment of the Payoff Amount as described
above, the Receivables Subsidiary hereby authorizes the Originator, Funding,
Redwood and GECC to file and record termination statements with respect to each
financing statement described on Schedule I and such other financing statements
as may be of record with respect to the Originator in favor of the Receivables
Subsidiary, and the above-mentioned release documents; and the Receivables
Subsidiary will deliver (or cause to be delivered) such other termination
statements or documents as the Originator, Funding, Redwood or GECC may
reasonably request in connection with the Receivables Subsidiary's
above-described release of the security interests and liens granted to the
Receivables Subsidiary pursuant to the Transaction Agreements.
5. Termination of Transaction Agreements. Upon the
effectiveness of this Agreement as set forth in Section 6, the Transaction
Agreements shall terminate and all obligations and security interests of the
parties thereunder (including without limitation any and all obligations
thereunder to purchase, sell, service or administer any receivables,
Transferred Assets, collections, lock-box accounts or related assets and all
security interests, if any, of the Receivables Seller Parties, the Agent,
FALCON and the Support Bank thereunder) shall
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terminate, except for indemnities and such other obligations that by the
express terms of the Transaction Agreements survive the termination thereof.
The parties hereto acknowledge and agree that all of the releases and
reconveyances described in paragraphs 2 through 4 shall occur simultaneously
and automatically upon payment of the Payoff Amount to the Agent as described
in Section 2(b) above and that, unless such Payoff Amount is paid in accordance
with such Section so as to make this Agreement effective, none of such releases
and reconveyances shall be deemed to have occurred.
6. Effectiveness of this Agreement. This Agreement
shall be effective as of this date upon the satisfaction of all of the
following conditions precedent:
(a) One or more counterparts of this Agreement
shall have been executed and delivered by each of the Trustee (on behalf of the
Trust), the Receivables Subsidiary, the Originator, the Agent, FALCON and the
Support Bank; and
(b) The Agent (on behalf of itself, FALCON and
the Support Bank) shall have received payment of the Payoff Amount in
accordance with Section 2(b) above.
7. Further Assurances. Each of the Trust, the
Receivables Subsidiary, the Originator, the Agent, FALCON and the Support Bank
hereby agrees to execute and deliver such Uniform Commercial Code termination
statements, lockbox account, collection account and blocked account transfers
or instructions, and such other documents as the Trust, the Receivables
Subsidiary or the Originator may reasonably request from time to time in order
to more fully effectuate the transactions contemplated by this Agreement;
provided, however, that any and all such termination statements, lockbox
account, collection account and blocked account transfers or instructions, and
other documents shall be prepared by the requesting party and all such
preparation and/or recordation shall be at the expense of the Receivables
Seller Parties, as applicable, and in no event at the expense of the Trustee,
the Agent, Falcon or the Support Bank.
8. Representations and Warranties. Each of the parties
hereto represents and warrants that it has the full corporate or other power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder and that this Agreement has been duly and validly
executed and delivered by it (and assuming the due and valid execution and
delivery hereof by all other parties hereto) constitutes a legal, valid and
binding obligation of such party enforceable against it in accordance with its
terms, except as the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws of general application
relating to or affecting the enforcement of creditors' rights or by general
principles of equity.
9. Funding Party. The Trustee and the Receivables
Seller Parties each hereby acknowledges and agrees that each of Funding,
Redwood and GECC, as a party responsible for funding the Payoff Amount and an
assignee of the Originator with respect to its interests in the Reconveyed
Assets, is funding such Payoff Amount in reliance on the representations made
by such parties and the releases contemplated herein.
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10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF
CONFLICTS) OF THE STATE OF NEW YORK.
11. Miscellaneous. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. This Agreement may be executed in any number of several
counterparts, and each such counterpart shall constitute an original and all
such counterparts together shall constitute one and the same instrument. The
delivery of an executed counterpart hereof by facsimile shall constitute
delivery of an executed counterpart hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS, each of the parties hereto, by their respective
duly authorized signatories, has executed and delivered this Agreement as of
the date first above written.
AVONDALE RECEIVABLES MASTER TRUST,
as Trust
By: MANUFACTURERS AND TRADERS TRUST
COMPANY, not in its individual capacity but
solely as Trustee on behalf of the Trust
By:
----------------------------------------
Name:
Title:
AVONDALE RECEIVABLES COMPANY,
as Receivables Subsidiary
By:
----------------------------------------
Name:
Title:
AVONDALE ▇▇▇▇▇, INC., as Originator
By:
----------------------------------------
Name:
Title:
RECEIVABLES PURCHASE TERMINATION AND REASSIGNMENT AGREEMENT
DATED AS OF AUGUST 30, 2002
FALCON ASSET SECURITIZATION
CORPORATION, as Purchaser
By:
----------------------------------------
Name:
Title:
BANK ONE, N.A., as Agent and as Support
Bank
By:
----------------------------------------
Name:
Title:
RECEIVABLES PURCHASE TERMINATION AND REASSIGNMENT AGREEMENT
DATED AS OF AUGUST 30, 2002
SCHEDULE I
UCC Financing Statements
Debtor:
Name: Avondale ▇▇▇▇▇, Inc.
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Jurisdiction Filing Number Filing Date
SOS Alabama B96-18887 05/01/96
Tift County, Georgia ▇▇▇-▇▇▇▇-▇▇▇▇▇▇ 07/15/96
Clerk, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇-▇▇▇ 05/02/96
Georgia
Clerk, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇-▇▇▇▇ 11/24/97
Georgia
Clerk, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇-▇▇▇ 04/19/01
Georgia
SOS ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 05/01/96
SOS ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 11/24/97
SOS South Carolina 960501-135332A 05/01/96
SOS South Carolina 971124-163340C 11/24/97
SOS South Carolina 010419-102244A 04/19/01
Debtor:
Name:
Address:
Jurisdiction Filing Number Filing Date
ACCOUNT AGREEMENT TERMINATION LETTER
August 30, 2002
Wachovia Bank, National Association Avondale ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Avondale Funding, LLC Redwood Receivables Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o General Electric Capital Corporation
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Certain Accounts involving Avondale ▇▇▇▇▇, Inc., Avondale Receivables
Company and Avondale Receivables Master Trust
To Whom It May Concern:
Reference is hereby made to that certain Receivables Purchase
Termination and Reassignment Agreement dated as of August 30, 2002 (the
"Termination Agreement") among Avondale Receivables Master Trust (the "Trust"),
Avondale Receivables Company, Avondale ▇▇▇▇▇, Inc., Falcon Asset Securitization
Corporation and Bank One, N.A., in its roles as "Agent" and "Support Bank".
Pursuant to the terms of the Termination Agreement, each of the
undersigned hereby gives you written notice that it has released all right,
title and interest, all liens on and security interests, if any, in and all
rights to control or direct the disposition of each of the accounts listed on
Schedule A attached hereto and all funds that are or may in the future be on
deposit in each such account.
This letter may be executed in any number of several counterparts, and
each such counterpart shall constitute an original and all such counterparts
together shall constitute one and the same letter. The delivery of an executed
counterpart hereof by facsimile shall constitute delivery of an executed
counterpart hereof.
Very Truly Yours,
AVONDALE RECEIVABLES MASTER TRUST,
as Trust
By: MANUFACTURERS AND TRADERS TRUST
COMPANY, not in its individual capacity but
solely as Trustee on behalf of the Trust
By:
----------------------------------------
Name:
Title:
AVONDALE RECEIVABLES COMPANY,
as Receivables Subsidiary
By:
----------------------------------------
Name:
Title:
Account Agreement Termination Letter
dated as of August 30, 2002
SCHEDULE A
LOCKBOXES, LOCKBOX ACCOUNTS AND COLLECTION ACCOUNT
CONCENTRATION
ACCOUNT: NAME: BANK:
▇▇-▇▇▇-▇▇▇ Avondale ▇▇▇▇▇, Inc. Wachovia Bank National Association
(f/k/a Wachovia Bank, N.A.)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LOCKBOX
LOCKBOX: ACCOUNT: NAME: BANK:
Avondale ▇▇▇▇▇, Inc. 101307 Avondale ▇▇▇▇▇, Inc. Wachovia Bank, National Association
P.O. Box 101307 Fabric Division (f/k/a Wachovia Bank, N.A.)
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (Atlanta) ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Flows into Act. 13-022-948)
Avondale ▇▇▇▇▇, Inc. 101264 Avondale ▇▇▇▇▇, Inc. Wachovia Bank, National Association
P.O. Box 101264 Trucking Division (f/k/a Wachovia Bank, N.A.)
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (Atlanta) ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(Flows into Act. 13-022-948)
Avondale ▇▇▇▇▇, Inc. 101436 Avondale ▇▇▇▇▇, Inc. Wachovia Bank, National Association
P.O. Box 101436 Yarn Division (f/k/a Wachovia Bank, N.A.)
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (Atlanta) ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(Flows into Act. 13-022-948)
Avondale ▇▇▇▇▇, Inc. 951280 Avondale ▇▇▇▇▇, Inc. Wachovia Bank, National Association
▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Fabrics (f/k/a Wachovia Bank of Texas)
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (Dallas) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Flows into Act. 13-022-948)
Avondale ▇▇▇▇▇, Inc. 75431 Avondale ▇▇▇▇▇, Inc. Wachovia Bank, National Association
▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Fabrics (f/k/a Wachovia Bank of North
Charlotte, NC 28275-5431 (Charlotte) Carolina)
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(Flows into Act. 13-022-948)
PAYMENT DIRECTION LETTER
August 30, 2002
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Avondale Funding, LLC and Avondale ▇▇▇▇▇, Inc.
Ladies and Gentlemen:
Pursuant to that certain Receivables Purchase Termination and
Reassignment Agreement, dated as of August 30, 2002 (the "Termination
Agreement") among Avondale Receivables Master Trust (the "Trust"), Avondale
Receivables Company (the "Receivables Subsidiary"), Avondale ▇▇▇▇▇, Inc.,
Falcon Asset Securitization Corporation ("FALCON") and Bank One, N.A., in its
roles as "Agent" and "Support Bank", (i) each of the Agent, FALCON and the
Support Bank have agreed to release all interests, security interests and liens
that each such entity has in the "Overall Receivables Assets" (as such term is
defined in the Termination Agreement) in consideration for the receipt of the
"Payoff Amount" (as such term is described in the Termination Agreement) from
the Trust, (ii) the Trust has agreed to assign, transfer and convey all of the
Trust's right, title and interest in and to the "Transferred Assets" (as such
term is defined in the Termination Agreement) to the Receivables Subsidiary and
the Receivables Subsidiary has agreed to such assignment, transfer and
conveyance and to make the "Contribution" (as such term is defined in the
Termination Agreement) to the Trust and (iii) the Receivables Subsidiary has
agreed to sell, assign, transfer and convey all of the Receivables Subsidiary's
right, title and interests to the "Transferred Assets" to the Originator in
consideration for the payment of the Payoff Amount and Contribution by the
Originator and the Originator has agreed to such sale, assignment, transfer and
conveyance.
Pursuant to that certain Receivables Sale and Contribution
Agreement, dated as of August 30, 2002 (the "Sale Agreement"), among Avondale
▇▇▇▇▇, Inc. (the "Originator"), Avondale Incorporated and Avondale Funding, LLC
("Funding"), the Originator has agreed to sell, contribute and otherwise assign
certain accounts receivable and other related assets to Funding.
Pursuant to that certain Receivables Purchase and Servicing
Agreement, dated as of August 30, 2002 (the "Purchase Agreement"), among
Funding, Avondale ▇▇▇▇▇, Inc. (the "Servicer"), Redwood Receivables Corporation
(the "Conduit Purchaser") and General Electric Capital Corporation, as
committed purchaser (the "Committed Purchaser") and as administrative agent
(the "Administrative Agent"), Funding has agreed to sell interests to the
Conduit Purchaser and the Committed Purchaser in the accounts receivable and
related assets acquired by Funding
under the Sale Agreement and certain other assets. All capitalized terms not
otherwise defined herein shall have the meanings assigned to them in the
Purchase Agreement.
Directions:
__________
The Trust hereby directs the Receivables Subsidiary to
deposit the amount of the Contribution in the following account (the
"Termination Payment Account") :
Bank Name: Manufactures and Traders Trust Company
City and State: Buffalo, New York
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account Number: 185621133
Reference: Attention: Trust Division/CC880
Amount: $64,569,534.30
The Trustee will withdraw an amount equal to the Payoff Amount from the
Termination Payment Account and distribute such amount to the Agent (on behalf
of itself, FALCON and the Support Bank) to fulfill the Trust's obligations to
pay the Payoff Amount to the Agent pursuant to the terms of the Termination
Agreement. Such distribution shall be by wire transfer of immediately available
funds to be made to the same account to which the Trustee currently wires
payments of interest and principal on the Certificates.
The Receivables Subsidiary hereby directs the Originator to
deposit the amount of the Contribution into the Termination Payment Account.
The Receivables Subsidiary intends that the payment described in this paragraph
fulfill the directions to the Receivables Subsidiary provided by the Trust in
the immediately preceding paragraph.
The Originator hereby directs Funding to pay a portion of the
initial "Sale Price" (as such term is defined in the Sale Agreement) equal to
the amount of the Contribution into the Termination Payment Account as partial
payment of the Sale Price. The remainder of the Sale Price shall be paid
pursuant to instructions given to Funding by the Originator apart from this
Payment Direction Letter. The Originator intends that the payment described in
this paragraph fulfill the directions to the Originator provided by the
Receivables Subsidiary in the immediately preceding paragraph.
Funding hereby directs the Administrative Agent (on behalf of
the Conduit Purchaser and the Committed Purchaser) to pay (a) a portion of the
initial "Capital Investment" (as such term is defined in the Purchase
Agreement) to be made by the Conduit Purchaser and/or the Committed Purchaser
under the Purchase Agreement equal to the amount of the Contribution into the
Termination Payment Account and (b) the remainder of the initial Capital
Investment into the "Collection Account" (as such term is defined in the
Purchase Agreement). Funding intends that the payment described in clause (a)
of this paragraph fulfill the directions to Funding provided by the Originator
in the immediately preceding paragraph.
This Payment Direction Letter may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one agreement. THIS PAYMENT DIRECTION LETTER SHALL BE GOVERNED BY
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.
[signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Payment Direction
Letter to be executed by their respective officers thereunto duly authorized as
of the date first above written.
AVONDALE RECEIVABLES MASTER TRUST,
as Trust
By: MANUFACTURERS AND TRADERS TRUST
COMPANY, not in its individual capacity but
solely as Trustee on behalf of the Trust
By:
----------------------------------------
Name:
Title:
AVONDALE RECEIVABLES COMPANY,
as Receivables Subsidiary
By:
----------------------------------------
Name:
Title:
AVONDALE ▇▇▇▇▇, INC., as Originator
By:
----------------------------------------
Name:
Title:
AVONDALE FUNDING, LLC, as Funding
By:
----------------------------------------
Name:
Title:
Acknowledged and Agreed to as
of the date first written above:
GENERAL ELECTRIC CAPITAL CORPORATION
------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
Payment Direction Letter
dated as of August 30, 2002