INTER-CITY PRODUCTS CORPORATION (USA)
SERIES 1996-1 SUPPLEMENT
to POOLING AND SERVICING AGREEMENT
dated as of July 25, 1996
among
INTER-CITY PRODUCTS RECEIVABLES COMPANY, L.P.,
as Transferor,
INTER-CITY PRODUCTS CORPORATION (USA),
as Servicer,
and
LASALLE NATIONAL BANK,
as Trustee
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; INCORPORATION OF TERMS
SECTION 1.1 Definitions. . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Incorporation of Terms . . . . . . . . . . . . . .19
ARTICLE II
DESIGNATION
SECTION 2.1 Designation. . . . . . . . . . . . . . . . . . . .20
ARTICLE III
CONDITIONS TO ISSUANCE
SECTION 3.1 Conditions to Issuance . . . . . . . . . . . . . .20
ARTICLE IV
PAYMENTS AND ALLOCATIONS
SECTION 4.1 Interest; Additional Amounts . . . . . . . . . . .20
SECTION 4.2 Daily Calculations and Series Allocations. . . . .21
SECTION 4.3 Allocations of Daily Series Collections During
Revolving Period. . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 4.4 Allocations of Daily Series Collections (Other
than During the
Revolving Period). . . . . . . . . . . . . . . . . . .22
SECTION 4.5 Withdrawals from the Equalization Account. . . . .24
SECTION 4.6 Available Subordinated Amount. . . . . . . . . . .24
SECTION 4.7 Write-Offs and Recoveries. . . . . . . . . . . . .25
SECTION 4.8 Certain Dilution in an Amortization Period or
Early Amortization
Period . . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 4.9 Pre-Closing Modification Notification. . . . . . .27
SECTION 4.10 Calculations of Reserves. . . . . . . . . . . . .27
SECTION 4.11 Investment of Funds in Transaction Accounts. . . .27
ARTICLE V
DISTRIBUTIONS AND REPORTS
SECTION 5.1 Distributions. . . . . . . . . . . . . . . . . . .28
SECTION 5.2 Payments in Respect of Transferor Certificate. . .29
SECTION 5.3 Daily Reports and Monthly Reports. . . . . . . . .30
SECTION 5.4 Annual Tax Information . . . . . . . . . . . . . .30
SECTION 5.5 Periodic Perfection Certificate. . . . . . . . . .30
ARTICLE VI
EARLY AMORTIZATION EVENTS
SECTION 6.1 Early Amortization Events. . . . . . . . . . . . .31
SECTION 6.2 Early Amortization Period. . . . . . . . . . . . .33
ARTICLE VII
OPTIONAL REDEMPTION; INDEMNITIES
SECTION 7.1 Optional Redemption of Investor Interests. . . . .33
SECTION 7.2 Indemnification by Transferor. . . . . . . . . . .34
SECTION 7.3 Indemnification by Servicer. . . . . . . . . . . .35
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Governing Law. . . . . . . . . . . . . . . . . . .35
SECTION 8.2 Counterparts . . . . . . . . . . . . . . . . . . .35
SECTION 8.3 Severability of Provisions . . . . . . . . . . . .35
SECTION 8.4 Amendment, Waiver, Etc.. . . . . . . . . . . . . .35
SECTION 8.5 Trustee. . . . . . . . . . . . . . . . . . . . . .36
SECTION 8.6 Instructions in Writing. . . . . . . . . . . . . .36
SECTION 8.7 Rule 144A. . . . . . . . . . . . . . . . . . . . .36
SECTION 8.8 Supplemental Ratings Requirement . . . . . . . . .36
EXHIBITS
EXHIBIT A Part 1. Form of Class A Certificate
Part 2. Form of Class B Certificate
EXHIBIT B Form of Daily Report
Part 1. For Use other than in Early
Amortization Period
Part 2. For Use in Early Amortization Period
EXHIBIT C Form of Monthly Report
Part 1. For Use other than in Early
Amortization Period
Part 2. For Use in Early Amortization Period
EXHIBIT D Form of Seller Guaranty
This SERIES 1996-1 SUPPLEMENT, dated as of July 25, 1996 (this
"Supplement"), is made among INTER-CITY PRODUCTS RECEIVABLES COMPANY,
L.P., a Tennessee limited partnership, as Transferor, INTER-CITY PRODUCTS
CORPORATION (USA), a Delaware corporation, as the Initial Servicer, and
LASALLE NATIONAL BANK, a national banking association, as Trustee.
Pursuant to the Pooling and Servicing Agreement, dated as of the
date hereof (as it may be amended, supplemented or otherwise modified from
time to time, and as supplemented hereby, the "Pooling Agreement"), among
Transferor, Servicer and Trustee, Transferor may from time to time issue,
and direct Trustee to authenticate, on behalf of the Trust, one or more
Series of Certificates representing undivided interests in the Transferred
Assets. Certain terms applicable to a Series are to be set forth in a
Supplement. This Supplement is a "Supplement" as that term is defined in
the Pooling Agreement.
Pursuant to this Supplement, Transferor and Trustee shall create
a Series of Certificates ("Series 1996-1") and specify certain of their
terms.
ARTICLE I
DEFINITIONS; INCORPORATION OF TERMS
SECTION 1.1 Definitions. (a) Capitalized terms used and not
otherwise defined herein are used as defined in Appendix A to the Pooling
Agreement. This Supplement shall be interpreted in accordance with the
conventions set forth in Part B of that Appendix A.
(b) Each reference in this Supplement to funds on deposit in the
Carrying Cost Account, the Equalization Account or the Principal Funding
Account (or similar phrase) refers only to funds in the administrative
sub-accounts of those Accounts that are allocated to Series 1996-1. Unless
the context otherwise requires, in this Supplement: (i) each reference to
a "Daily Report" or "Monthly Report" refers to a Daily Report or Monthly
Report for the Series 1996-1 Certificates; (ii) each reference to the
"Servicing Fee" refers to the Servicing Fee allocable to Series 1996-1;
(iii) each reference to the "Series Collection Allocation Percentage" or
the "Series Loss Allocation Percentage" refers to the Series Collection
Allocation Percentage or Series Loss Allocation Percentage for the Series
1996-1 Certificates; and (iv) each reference to the Transaction Documents
shall include a reference to the Certificate Purchase Agreements.
(c) Each capitalized term defined below relates only to the Series
1996-1 Certificates and to no other Series of Certificates. Whenever used
in this Supplement, the following words and phrases shall have the
following meanings:
"ABR Tranche" means, during any Interest Period, and as the
context shall indicate, (i) any portion of the Class A Invested Amount
that, in accordance with the Class A Certificate Purchase Agreement,
accrues interest based on the Alternate Base Rate and (ii) if the Holder
of the Class B Certificates shall have given the notice specified in
Section 3.2 of the Class B Certificate Purchase Agreement (and for so long
as such notice continues in effect), the Class B Invested Amount.
"Additional Amounts" means all amounts payable to the Holders or
the Agent pursuant to the Certificate Purchase Agreements, including,
without limitation pursuant to Sections 2.2(c), 2.3(b), 4.2, 4.3, 4.5,
4.6, 9.10, and 10.5 of the Class A Certificate Purchase Agreement and
Sections 3.2, 3.3, 3.4, 3.5 and 8.5 of the Class B Certificate Purchase
Agreement; provided that "Additional Amounts" shall not include principal
or interest on the Series 1996-1 Certificates or Non-Usage Fees.
"Adjusted Eligible Receivables" means, on any Business Day, the
result of (a) the aggregate Unpaid Balance of Eligible Receivables, minus
(b) the Unapplied Cash, plus (c) the Aggregate Retained Balances, minus
(d) the sum of Excess Foreign Obligor Balances, Excess Foreign Currency
Receivables, Co-Op Advertising Reserves and Cash Discount Reserves, minus
(e) on or after April 1, 2001, all Extended Term Receivables arising on
or after such date in each case as reflected in the Daily Report for that
day.
"Aged Receivables Ratio" means, as calculated in each Monthly
Report as of the Cut-Off Date for the related Calculation Period, a
fraction (expressed as a percentage) having (a) a numerator that is the
sum of (i) the aggregate Unpaid Balance of Eligible Receivables (and
Receivables that would be Eligible Receivables but for clause (c) of the
definition of Eligible Receivables) that remained outstanding 151 to 180
days (except Receivables of General, for which the reference shall be to
61 to 90 days) after their respective original due dates, as determined
as of the Cut-Off Date for such Calculation Period, plus (ii) the
aggregate Unpaid Balance of Eligible Receivables (and Receivables that
would be Eligible Receivables but for clause (c) of the definition of
Eligible Receivables) that were written off as uncollectible during the
most recently ended Calculation Period and that, if not so written off,
would have been outstanding not more than 180 days (except Receivables of
General, for which the reference shall be to 90 days) after their
respective original due dates, as determined as of that Cut-Off Date, plus
(iii) the aggregate amount of unpaid credit memoranda issued by the
Servicer, to the extent that such unpaid credit memoranda have reduced the
aggregate balance of Eligible Receivables pursuant to clause (i), and (b)
a denominator that is the aggregate amount payable pursuant to invoices
giving rise to Eligible Receivables (and Receivables that would be
Eligible Receivables but for clause (c) of the definition of Eligible
Receivables) that were generated by the Sellers during the Calculation
Period that occurred seven Calculation Periods (except Eligible
Receivables of General, for which the reference shall be to three
Calculation Periods and except for Eligible Receivables of Coastline, for
which the reference shall be to six Calculation Periods) and prior to the
most recently ended Calculation Period, as determined as of the Cut-Off
Date for such prior Calculation Period;
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provided, however, that for purposes of calculating this ratio, any
unapplied credit memoranda shall be excluded.
"Agent" means The Chicago Corporation, a Delaware corporation, and
its successors and assigns.
"Aggregate Retained Balances" means, on any Business Day, the
aggregate of the balances retained in Lockbox Accounts or Concentration
Accounts for items in the process of collection but for which funds have
not been made available by the related Lockbox Bank or Concentration
Account Bank, provided that (i) no notice of insufficient funds or similar
situation shall exist with respect thereto; (ii) the Unpaid Balance of
Receivables shall have been reduced by an amount equal to such balances;
and (iii) the Obligor which remitted such funds shall have no Receivables
which have aged more than 120 days past their respective original invoice
dates.
"Alternate Base Rate" means, on any day, a fluctuating rate of
interest per annum equal to the highest of:
(a) the rate of interest announced, from time to time,
by the Trustee as its prime commercial rate for United States
dollar loans made in the United States for any day, and
(b) the Federal Funds Rate.
Any change in the interest rate resulting from a change in the prime
commercial rate announced by the Trustee shall become effective without
prior notice to Transferor or Servicer as of 12:01 a.m., New York City
time, on the Business Day on which each change in the prime commercial
rate is announced by the Trustee. The prime commercial rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged by the Trustee to any customer. The Trustee may make
commercial loans or other loans at rates of interest at, above or below
the prime commercial rate.
"Amortization Period" means the period (x) beginning on July 1,
2001, and (y) ending on the earlier of (i) the Expected Final Payment Date
and (ii) the date, if any, on which an Early Amortization Period
commences.
"Applicable Ratings Factor" means the Class A Ratings Factor or
the Class B Ratings Factor, as specified in each calculation where the
Applicable Ratings Factor is used.
"Applicable Receivables" is defined in Section 4.10.
"ASA Measuring Period" means, for any Cut-Off Date falling in an
Early Amortization Period, the Calculation Period ending on that Cut-Off
Date (or the portion thereof falling after
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the Early Amortization Calculation Date, in the case of the first Cut-Off
Date falling in the Early Amortization Period).
"Available Subordinated Amount" means, at any time during an Early
Amortization Period, the amount calculated pursuant to Section 4.6.
"Base Amount" means, on any Business Day, the result of the
following formula:
[NER x SCAP x (100%-CBRR)] - CASD - CCRR
where:
NER = the Net Eligible Receivables as
reported in the Daily Report for that
Business Day;
SCAP = the Series Collection Allocation
Percentage for that Business Day;
CBRR = the Class B Reserve Ratio in effect for
that Business Day;
CASD = the Class A Subordination Deficit for that
Business Day; and
CCRR = the Carrying Cost Receivables Reserve as
reported in the Daily Report for such
day.
"Carrying Cost Cash Required Amount" means, on any Business Day,
an amount equal to the Current Carrying Costs.
"Carrying Cost Receivables Reserve" means, on any Business Day,
the result of:
(a) the Current Carrying Costs; plus
(b) (i) the Class A Invested Amount, multiplied by
(ii) 1.5 multiplied by the weighted average of the interest rates
on Class A Certificates, multiplied by (iii) a fraction the
numerator of which is the product of two and the number of
Portfolio Collection Days and the denominator of which is 360;
plus
(c) (i) the Class B Invested Amount, multiplied by
(ii) 1.5 multiplied by the weighted average of the interest rates
on the Class B Certificates, multiplied by (iii) a fraction the
numerator of which is the product of two and the number of
Portfolio Collection Days and the denominator of which is 360;
plus
(d) (i) the Class A Stated Amount minus the Class A
Invested Amount, multiplied by (ii) the Non-Usage Fee Rate,
multiplied by (iii) a fraction the numerator of which is the
product of two and the number of Portfolio Collection Days and
the denominator of which is 360; plus
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(e) the product of (i) the Series Collection
Allocation Percentage at the close of business on the next
preceding Distribution Date, multiplied by (ii) the aggregate
Unpaid Balance of Receivables on the next preceding Distribution
Date, multiplied by (iii) 1%, multiplied by (iv) a fraction the
numerator of which is the product of two and the number of
Portfolio Collection Days and the denominator of which is 360;
minus
(f) the balance on deposit in the Carrying Cost
Account at the beginning of that Business Day.
"Cash Discount Credits" means, with respect to any period of time,
all cash discounts for prompt payment taken by Obligors with respect to
Eligible Receivables of ICP during such period.
"Cash Discount Reserves" means, on any day, 1.5% of the aggregate
Unpaid Balance of those Eligible Receivables of ICP for which cash
discounts for prompt payment are available.
"Certificate Purchase Agreements" means the Class A Certificate
Purchase Agreement and the Class B Certificate Purchase Agreement.
"Class A Certificate" is defined in Section 2.1. Each Class A
Certificate shall be substantially in the form of Part 1 of Exhibit A.
"Class A Certificate Purchase Agreement" means the Class A
Certificate Purchase Agreement dated as of the Closing Date among
Transferor, Servicer and the purchaser of the Class A Certificates. The
Class A Certificate Purchase Agreement is hereby designated a "Transaction
Document" for purposes of the Pooling Agreement.
"Class A Certificate Spread" means with respect to any Tranche of
the Class A Certificates, 1.20% per annum; provided that at any time that
an Unmatured Early Amortization Event or an Early Amortization Event has
occurred and is continuing, "Class A Certificate Spread" means with
respect to any Tranche of the Class A Certificates, 3.20% per annum.
"Class A Excess Concentration Balances" means, on any day and with
respect to all Obligors as a group, the minimum aggregate outstanding
balance of Eligible Receivables that do not satisfy all of the following
tests:
(i) no single Obligor may account for a percentage of
Adjusted Eligible Receivables greater than the Class A
Concentration Percentage multiplied by 35.0%;
(ii) no two Obligors together may account for a
percentage of Adjusted Eligible Receivables in excess of the
Class A Concentration Percentage multiplied by 50.0%;
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(iii) no six Obligors together may account for a
percentage of Adjusted Eligible Receivables in excess of the
Class A Concentration Percentage; and
(iv) no Obligor (other than the six Obligors with the
largest outstanding balances of Eligible Receivables after the
eliminations effected pursuant to clauses (i) to (iii) above) may
account for more than 10% of the Class A Concentration
Percentage;
where "Class A Concentration Percentage" means the Class A Reserve
Ratio minus the product of the average of the Dilution Ratios for the
period of 12 preceding Calculation Periods ending on the Cut-Off Date,
multiplied by the Dilution Horizon Variable for the Cut-Off Date.
Class A Excess Concentration Balances will be measured on each day during
each Distribution Period with respect to Obligors for such period. For
purposes of this definition, all Obligors that are Affiliates of each
other shall be treated as a single Obligor.
"Class A Incremental Concentration Balance" means at any time, the
excess, if any, of (i) the sum of the Class A Excess Concentration
Balances with respect to all Obligors over (ii) the sum of the Class B
Excess Concentration Balances with respect to all Obligors. The Class A
Incremental Concentration Balance will be measured on each day during each
Distribution Period.
"Class A Invested Amount" means, at any time, the sum of the
purchase prices paid for Class A Purchases made at or prior to that time,
reduced (but not below zero) by (a) the aggregate amount of all
distributions that have been made to the Holders of the Class A
Certificates on account of principal, and (b) the amount of all Investor
Write-Offs that have been applied to reduce the Class A Invested Amount
(net of Investor Allocable Recoveries and Investor Allocable Dilution
Adjustments that have been applied to reinstate the Class A Invested
Amount).
"Class A Purchases" means Purchases made in respect of Class A
Certificates pursuant to the Class A Certificate Purchase Agreement.
"Class A Ratings Factor" means 2.50.
"Class A Required Reserves" means, at any time, the product of (a)
the excess of the Net Eligible Receivables over the Class A Incremental
Concentration Balance multiplied by (b) the Class A Reserve Ratio
multiplied by (c) the Series Collection Allocation Percentage.
"Class A Reserve Ratio" means, during any Distribution Period, the
greatest of (a) 25%, (b) the Loss Reserve Ratio plus the Dilution Reserve
Ratio (each calculated using the Class A Ratings Factor), and (c) the Loss
Reserve Ratio (Z-value) plus the Dilution Reserve Ratio (Z-value) (each
calculated using the Class A Ratings Factor and the Class A Z-value), in
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each case as calculated in the Monthly Report required to be delivered on
the Report Date immediately prior to the start of that Distribution
Period, provided that during the period from the Closing Date to the first
Distribution Date thereafter, the Class A Reserve Ratio shall be 50.92%.
"Class A Restrictive Components" means on any Business Day, the
sum of (i) the Class A Incremental Concentration Balance and (ii) Included
Foreign Obligor Balances; provided that to the extent any Class B Excess
Concentration Balance exists as a result of taking into account any
Included Foreign Obligor Balance, such Included Foreign Obligor Balance
shall be excluded from the calculation of Class A Restrictive Components.
"Class A Stated Amount" means as to any Class A Certificate, the
initial maximum principal amount that may be required to be funded by the
Holder of such Certificate, as such amount may be reduced pursuant to
Section 2.3 of the Certificate Purchase Agreement, which initial amount
in the aggregate is $60,000,000.
"Class A Subordination Deficit" means on any Business Day, the
positive result (if any) of
(a) the Class A Required Reserves, minus the Class
B Required Reserves, plus
(b) the Class A Restrictive Components, minus
(c) the Class B Invested Amount.
(all calculated as of the beginning of that Business Day); provided that
at any time when no Class A Certificates are outstanding the Class A
Subordination Deficit shall equal zero.
"Class A Z-value"means 2.58.
"Class B Certificate" is defined in Section 2.1. Each Class B
Certificate shall be substantially in the form of Part 2 of Exhibit A.
"Class B Certificate Purchase Agreement" means the Class B
Certificate Purchase Agreement dated as of the Closing Date among
Transferor, Servicer and the purchasers of the Class B Certificates. The
Class B Certificate Purchase Agreement is hereby designated a "Transaction
Document" for purposes of the Pooling Agreement.
"Class B Certificate Spread" means with respect the Class B
Certificates, 3.50% per annum; provided that at any time that an Unmatured
Early Amortization Event or an Early Amortization Event has occurred and
is continuing, "Class B Certificate Spread" means with respect to the
Class B Certificates 5.50% per annum.
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"Class B Excess Concentration Balances" means, on any day and with
respect to all Obligors as a group, the minimum aggregate outstanding
balance of Eligible Receivables that do not satisfy all of the following
tests:
(i) no single Obligor may account for a percentage of
Adjusted Eligible Receivables greater than the Class B
Concentration Percentage multiplied by 45.0%;
(ii) no two Obligors together may account for a
percentage of Adjusted Eligible Receivables in excess of the
Class B Concentration Percentage multiplied by 67.5%;
(iii) no four Obligors together may account for a
percentage of Adjusted Eligible Receivables in excess of the
Class B Concentration Percentage; and
(iv) no Obligor (other than the four Obligors with the
largest outstanding balances of Eligible Receivables after the
eliminations effected pursuant to clauses (i) to (iii) above) may
account for more than 12.5% of the Class B Concentration
Percentage;
where "Class B Concentration Percentage" means (i) the Class B
Reserve Ratio minus (ii) the product of the average of the Dilution Ratios
for the period of 12 preceding Calculation Periods ending on the Cut-Off
Date, multiplied by the Dilution Horizon Variable for the Cut-Off Date,
minus (iii) the quotient of (x) Included Foreign Obligor Balances divided
by (y) Adjusted Eligible Receivables.
Class B Excess Concentration Balances will be measured on each day during
each Distribution Period with respect to Obligors for such period. For
purposes of this definition, all Obligors that are Affiliates of each
other shall be treated as a single Obligor.
"Class B Invested Amount" means, at any time, the sum of the
purchase prices paid for Class B Purchases made at or prior to that time
divided by 99.45%, reduced (but not below zero) by (a) the aggregate
amount of all distributions that have been made to the Holders of the
Class B Certificates on account of principal, and (b) the amount of all
Investor Write-Offs that have been applied to reduce the Class B Invested
Amount (net of Investor Allocable Recoveries and Investor Allocable
Dilution Adjustments that have been applied to reinstate the Class B
Invested Amount).
"Class B Purchases" means Purchases made in respect of Class B
Certificates pursuant to the Class B Certificate Purchase Agreement.
"Class B Ratings Factor" means 2.0.
"Class B Required Reserves" means, at any time, the product of (a)
the Net Eligible Receivables multiplied by (b) the Class B Reserve Ratio
multiplied by (c) the Series Collection Allocation Percentage.
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"Class B Reserve Ratio" means, during any Distribution Period, the
greatest of (a) 18%, (b) the Loss Reserve Ratio plus the Dilution Reserve
Ratio (each calculated using the Class B Ratings Factor), and (c) the Loss
Reserve Ratio (Z-value) plus the Dilution Reserve Ratio (Z-value) (each
calculated using the Class B Ratings Factor and the Class B Z-value), in
each case as calculated in the Monthly Report required to be delivered on
the Report Date immediately prior to the start of that Distribution
Period, provided that during the period from the Closing Date to the first
Distribution Date thereafter, the Class B Reserve Ratio shall be 41.54%.
"Class B Z-value"means 1.96.
"Closing Date" means July 25, 1996.
"Co-Op Advertising Credits" mean cooperative advertising credits
granted by ICP, but only to the extent that (i) such credits are
calculated by means of a flat percentage of sales and require no further
action by Obligors to be earned and (ii) such credits are recorded as
credits concurrently with the sending of the related invoice.
"Co-Op Advertising Reserves" means, on any day, all outstanding
and unpaid Co-Op Advertising Credits in existence with respect to all
Eligible Receivables.
"Current Carrying Costs" means, on any Business Day during any
Distribution Period, the sum of (i) the amount of accrued and unpaid
interest on the Series 1996-1 Certificates through such Business Day, (ii)
the amount of additional interest that will be accrued and unpaid on the
Series 1996-1 Certificates through the last day of such Distribution
Period at the interest rates applicable to the Invested Amount as of such
Business Day, (iii) the amount of the Servicing Fee that will be payable
on the next Distribution Date, (iv) the amount of accrued and unpaid Non-
Usage Fees with respect to the Class A Certificates through such Business
Day, and (v) the amount of Non-Usage Fees that will accrue and be payable
on the next Distribution Date based on the current Stated Amount and
Invested Amount of the Class A Certificates.
"Daily Series Collections" is defined in Section 4.2.
"DCR" means Duff & ▇▇▇▇▇▇ Credit Rating Co.
"Designated Receivables" is defined in Section 4.10.
"Dilution Horizon Variable" means, at any time, a fraction having
(a) a numerator equal to the sum of the aggregate amounts payable pursuant
to invoices giving rise to Receivables and generated by the Sellers during
the three Calculation Periods ending on the most recent Cut-Off Date (as
of that Cut-Off Date) and (b) a denominator equal to the Net Eligible
Receivables as of the most recent Cut-Off Date.
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"Dilution Ratio" means, as calculated in each Monthly Report as
of the most recent Cut-Off Date, a fraction (expressed as a percentage)
having (a) a numerator equal to the aggregate amount of Dilution on the
Eligible Receivables occurring during the three Calculation Periods ending
on the most recent Cut-Off Date (except for Planned ICP Dilution), and (b)
a denominator equal to the aggregate amounts payable pursuant to invoices
giving rise to Eligible Receivables that were generated by the Seller
during the fifth, fourth and third preceding Calculation Periods (so that,
for example, if the Calculation Periods specified in clause (a)
corresponded to the April, May and June Calculation Periods, the
Calculation Periods in this clause (b) would be the ones corresponding to
the January, February and March Calculation Periods).
"Dilution Reserve Ratio" means, as calculated in each Monthly
Report, the result (expressed as a percentage) calculated in accordance
with the following formula:
{(ARF x ADR) + [(HDR-ADR) x (HDR/ADR)]} x DHV
where:
ADR = the average of the Dilution Ratios during the
period of 12 consecutive Calculation Periods
ending on the related Cut-Off Date;
ARF = the Applicable Ratings Factor;
DHV = the Dilution Horizon Variable; and
HDR = the highest Dilution Ratio as of the end of any
of the 12 consecutive Calculation Periods ending
on the related Cut-Off Date.
"Dilution Reserve Ratio (Z-value)" means, as calculated in each
Monthly Report, the result (expressed as a percentage) calculated in
accordance with the following formula:
[(ARF x ADR) + (Z-value x SD)] x DHV
where:
ADR = the average of the Dilution Ratios during the
period of 12 consecutive Calculation Periods
ending on the related Cut-Off Date.
ARF = the Applicable Ratings Factor.
DHV = the Dilution Horizon Variable.
SD = the sample standard deviation, during the period
of 12 consecutive Calculation Periods ending on
the related Cut-Off Date, of the Dilution Ratio.
"Early Amortization Calculation Date" means the day before an
Early Amortization Period begins.
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"Early Amortization Period" means the period beginning on the date
(if any) specified in Section 6.2 and ending on the day on which the
Invested Amount has been reduced to zero.
"Eurodollar Tranche" means, during any Interest Period, and as the
context shall indicate, (i) any portion of the Class A Invested Amount
that, in accordance with the Class A Certificate Purchase Agreement,
accrues interest based on LIBOR or (ii) unless the Holder of the Class B
Certificates shall have given the notice specified in Section 3.2 of the
Class B Certificate Purchase Agreement (and for so long as such notice
continues in effect), the Class B Invested Amount.
"Excess Foreign Currency Receivables" means, on any day, the
positive result (if any), of the aggregate Unpaid Balance of Eligible
Receivables which are denominated and payable in currencies other than
Dollars, minus 0.5% of the aggregate Unpaid Balance of Eligible
Receivables.
"Excess Foreign Obligor Balances" means, on any day, without
duplication, the sum of (a) the positive result (if any), of the aggregate
Unpaid Balance of Eligible Receivables generated by Obligors (other than
ICP Canada) who are not Domestic Persons, minus 5% of the aggregate Unpaid
Balance of Eligible Receivables, plus (b) the positive result (if any),
of the aggregate Unpaid Balance of Eligible Receivables generated by any
single Obligor who is not a Domestic Person, minus 1% of the aggregate
Unpaid Balance of Eligible Receivables, plus (c) the positive result (if
any), of the aggregate Unpaid Balance of Eligible Receivables generated
by Obligors who are located in countries whose Dollar denominated
obligations have a debt rating from S&P of less than "A" (or its
equivalent), minus 2% of the aggregate Unpaid Balance of Eligible
Receivables.
"Expected Final Payment Date" means the Distribution Date
occurring in September 2001.
"Federal Funds Rate" means (a) the weighted average of the rates
on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for the day
(or, if the day is not a Business Day, the immediately preceding Business
Day) by the Federal Reserve Bank of New York; provided that if the rate
is not so published for any Business Day, the rate for purposes of this
clause will be the average of the quotations for the day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it, plus (b) 100 basis points.
"Final Scheduled Payment Date" means the Distribution Date
occurring in August 2002.
"First Issuance Date" means July 25, 1996.
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"Fully Funded Date" means the first date falling in the
Amortization Period or an Early Amortization Period on which there are
funds on deposit in the Carrying Cost Account and the Principal Funding
Account that, in the aggregate, equal or exceed the sum of (i) any
Servicing Fee payable to anyone other than a Related Person on the first
Distribution Date falling after that date, and (ii) the Investor Repayment
Amount.
"Guarantor" means ICP, in its capacity as the guarantor under the
Seller Guaranty.
"Holdback Account Termination Date" is defined in Section 4.4.
"Holder" means a Holder (as defined in the Pooling Agreement) of
a Class A Certificate or Class B Certificate.
"Included Foreign Obligor Balances" means, on any day, the result
of (i) the aggregate Unpaid Balance of Eligible Receivables generated by
Obligors (other than ICP Canada) who are not Domestic Persons minus (ii)
the Excess Foreign Obligor Balances.
"Interest Payment Date" means, (i) with respect to any ABR
Tranche, the date that is one month after the first day of such Tranche's
Interest Period (provided that if such day is not a London/U.S. Business
Day, the Interest Payment Date shall instead be the next London/U.S.
Business Day), or (ii) with respect to a Eurodollar Tranche, the date that
is one month after the first day of such Eurodollar Tranche's Interest
Period (provided that if such day is not a London/U.S. Business Day, the
Interest Payment Date shall instead be the next day that is a London/U.S.
Business Day, unless such day falls in the next calendar month, in which
case the Interest Payment Date shall instead be the next preceding day
that is a London/U.S. Business Day).
"Interest Period" means as to each Tranche (if any) from time to
time, each period from and including the date upon which that Tranche was
first designated as such pursuant to the Class A Certificate Purchase
Agreement (or the end of the preceding Interest Period for such Tranche,
if there has been one) to but excluding the date that is one month
thereafter; (provided, with respect to an Interest Period for a Eurodollar
Tranche, that if such day is not a London/U.S. Business Day, the Interest
Payment Date shall instead be the next day that is a London/U.S. Business
Day, unless such day falls in the next calendar month, in which case the
Interest Payment Date shall instead be the next preceding day that is a
London/U.S. Business Day).
"Invested Amount" means, at any time, the sum of the Class A
Invested Amount plus the Class B Invested Amount.
"Investor Allocable Dilution" means for any Calculation Period or
ASA Measuring Period, the product of the aggregate amount of Dilution for
that Calculation Period or ASA Measuring Period as to which neither the
applicable Seller nor the Guarantor has made any
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payment required by Section 3.1 of the Purchase Agreement or the Seller
Guaranty on account of Seller Dilution Adjustments multiplied by the
Series Loss Allocation Percentage as of the beginning of that Calculation
Period or ASA Measuring Period, multiplied by the Investor Allocation
Percentage as of the first Business Day of that Calculation Period or ASA
Measuring Period.
"Investor Allocable Dilution Adjustments" is defined in Section
4.8.
"Investor Allocable Loss Amount" means, for any ASA Measuring
Period, the product of the Loss Amount for that ASA Measuring Period,
multiplied by the Series Loss Allocation Percentage as of the beginning
of that ASA Measuring Period, multiplied by the Investor Allocation
Percentage as of the first Business Day of that ASA Measuring Period.
"Investor Allocable Recoveries" means, for any ASA Measuring
Period, the product of the Net Recoveries for that ASA Measuring Period,
multiplied by the Series Loss Allocation Percentage as of the beginning
of that ASA Measuring Period, multiplied by the Investor Allocation
Percentage as of the first Business Day of that ASA Measuring Period.
"Investor Allocation Percentage" means:
(x) on any Business Day falling in the Revolving Period,
a fraction (expressed as a percentage, which in any event may not
exceed 100%) (a) the numerator of which is the Net Invested
Amount as of that Business Day, and (b) the denominator of which
is the Base Amount as of that Business Day; and
(y) on any Business Day falling in the Amortization
Period or an Early Amortization Period, a fraction (expressed as
a percentage, which in any event may not exceed 100%) (a) the
numerator of which is the Net Invested Amount as of the first day
of the Amortization Period or the Early Amortization Calculation
Date, as applicable, and (b) the denominator of which is the Base
Amount as of the first day of the Amortization Period or the
Early Amortization Calculation Date, as applicable.
"Investor Repayment Amount" means, on any Business Day falling in
the Amortization Period or an Early Amortization Period, the sum of (a)
the outstanding principal amount of the Series 1996-1 Certificates, plus
(b) the interest and any Additional Amounts known to be payable on the
Series 1996-1 Certificates on the first Distribution Date falling after
that date, plus (c) an amount determined by the Trustee as reasonably
expected to constitute Additional Amounts but are not known to be payable
on the Series 1996-1 Certificates on the first Distribution Date falling
after that date.
"Investor Write-Offs" means, as calculated in any Monthly Report
relating to a Calculation Period falling completely or partially in an
Early Amortization Period:
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(a) if the Available Subordinated Amount is greater than
zero at the end of the related ASA Measuring Period, zero; and
(b) if the Available Subordinated Amount is zero at the
end of the related ASA Measuring Period (after taking into
account any reduction in the Available Subordinated Amount shown
in such Monthly Report), the excess (if any) of (x) the sum of
the Investor Allocable Loss Amount and the Investor Allocable
Dilution minus the sum of Investor Allocable Recoveries and
Investor Allocable Dilution Adjustments for the related ASA
Measuring Period, over (y) the Available Subordinated Amount as
of the beginning of that ASA Measuring Period.
"LIBOR" means, for any Interest Period, the quotient determined
by dividing (i) the one-month rate described on the Dow ▇▇▇▇▇ Telerate
System, page 3750, as of 11:00 a.m. London time on the LIBOR Determination
Date, by (ii) a percentage equal to 100% minus the stated maximum rate of
all reserve requirements (including any marginal, emergency, supplemental,
special or other reserves) applicable on the LIBOR Determination Date to
any member bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" as defined in Regulation D of the Federal Reserve Bank (or
any successor category of liabilities under Regulation D).
Notwithstanding the foregoing, in the event that such rate is not
provided, LIBOR shall mean the rate determined in accordance with the
following procedure:
(i) The Agent on the LIBOR Determination
Date will request the principal London offices of each of
four major reference banks in the London interbank
market, as selected by the Agent, to provide the Agent
with its offered quotation for deposits in United States
Dollars for the upcoming one-month period, commencing on
the second London Business Day immediately following such
LIBOR Determination Date, to prime banks in the London
interbank market at approximately 11:00 a.m. London time
on such LIBOR Determination Date and in a principal
amount that is representative for a single transaction in
United States Dollars in such market at such time. If at
least two such quotations are provided, LIBOR determined
on such LIBOR Determination Date will be the arithmetic
mean of such quotations.
(ii) If fewer than two quotations are
provided, LIBOR determined on such LIBOR Determination
Date will be the arithmetic mean of the rates quoted at
approximately 11:00 a.m. in New York City on such LIBOR
Determination Date by three major banks in New York City
selected by the Agent for one-month United States Dollar
loans to leading European banks, in a principal amount
that is representative for a single transaction in United
States Dollars in such market at such time; provided,
however, that if the banks so selected by the Agent are
not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Determination Date will continue
to be LIBOR as then currently in effect on such LIBOR
Determination Date.
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"LIBOR Determination Date" means, for any Interest Period, the
date which is two London/U.S. Business Days prior to the date on which
such Interest Period begins.
"London Business Day" means any day on which dealings in deposits
in United States Dollars are transacted in the London interbank market.
"London/U.S. Business Day" means a day that is both a Business Day
and a London Business Day.
"Loss Amount" means, with respect to any ASA Measuring Period, an
amount equal to the positive difference (if any) of (a) the amount of
Receivables held by the Trust that became Write-Offs during that ASA
Measuring Period, minus (b) the amount of Recoveries received during that
ASA Measuring Period.
"Loss Reserve Ratio" means, as calculated in each Monthly Report,
the result (expressed as a percentage) of (a) the Applicable Ratings
Factor multiplied by (b) the highest average of the Aged Receivables Ratio
for any three consecutive Calculation Periods that occurred during the
preceding 12 consecutive Calculation Periods ending on the most recent
Cut-Off Date multiplied by (c) a fraction having (i) a numerator equal to
the sum of the aggregate amounts payable pursuant to invoices giving rise
to Receivables generated by the Sellers during the five Calculation
Periods ending on the most recent Cut-Off Date, and (ii) a denominator
equal to the Net Eligible Receivables, as of the most recent Cut-Off Date,
multiplied by (d) one plus the Remaining Payment Term Adjustment.
"Loss Reserve Ratio (Z-value)" means, as calculated in each
Monthly Report, the result (expressed as a percentage) of (a) the Loss
Reserve Ratio plus (b) the product of the Z-value multiplied by the sample
standard deviation of the Aged Receivables Ratio during the preceding 12
consecutive Calculation Periods ending on the most recent Cut-Off Date.
"Maximum Exposure Amount" means, as of any Business Day, the
positive result (if any) of (a) the product of (i) the Pro Forma Eligible
Receivables, multiplied by (ii) the result (expressed as a decimal) of
100% minus the Pro Forma Reserve Ratio, minus (b) the Net Invested Amount.
"Net Eligible Receivables" means, at any time, (a) the Adjusted
Eligible Receivables, minus (b) the then aggregate amount of all Class B
Excess Concentration Balances with respect to all Obligors.
"Net Invested Amount" means, on any Business Day, the Invested
Amount, reduced by the aggregate balance on deposit in the Equalization
Account and the Principal Funding Account.
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"Net Recoveries" means, with respect to any ASA Measuring Period,
an amount equal to the positive difference (if any) of (a) the amount of
Recoveries received in that ASA Measuring Period minus (b) the amount of
Receivables that became Write-Offs in that ASA Measuring Period.
"Non-Usage Fee Rate" means a per annum rate equal to 0.55%.
"Non-Usage Fees" means the fees payable to the Class A
Certificateholders as provided in Section 4.2(a) of the Class A
Certificate Purchase Agreement.
"Planned ICP Dilution" means, with respect to any period of time,
Dilution (i) arising as a result of Permitted Inventory Management Product
Returns or Permitted Terminated Distributor Returns occurring during such
period, (ii) constituting Co-Op Advertising Credits granted during such
period, or (iii) constituting Cash Discount Credits granted during such
period.
"Principal Payment Date" means (i) with respect to the Class A
Certificate during the Revolving Period, any date on which the Class A
Invested Amount is to be reduced pursuant to Section 3.1 of the Class A
Certificate Purchase Agreement, (ii) with respect to the Class A
Certificate during an Amortization Period or Early Amortization Period,
each Interest Payment Date falling in such Amortization Period or Early
Amortization Period and (iii) with respect to the Class B Certificate,
each Distribution Date falling in an Amortization Period or Early
Amortization Period.
"Pro Forma Eligible Receivables" means, at any time, (a) the
Adjusted Eligible Receivables, minus (b) the then aggregate amount of all
Pro Forma Excess Concentration Balances with respect to all Obligors.
"Pro Forma Excess Concentration Balances" means, on any day and
with respect to all Obligors as a group, the minimum aggregate outstanding
balance of Eligible Receivables that do not satisfy all of the following
tests:
(i) no single Obligor may account for a percentage of
Adjusted Eligible Receivables greater than the Pro Forma Reserve
Ratio multiplied by 60.0%; and
(ii) no three Obligors together may account for a
percentage of Adjusted Eligible Receivables in excess of the Pro
Forma Reserve Ratio; and
(iv) no Obligor (other than the two Obligors with the
largest outstanding balances of Eligible Receivables after the
eliminations effected pursuant to clauses (i) to (iii) above) may
account for a percentage of Adjusted Eligible Receivables that is
larger than the Obligor with the third largest balance of
Adjusted Eligible Receivables after then eliminations effected
pursuant to clauses (i) and (ii) above).
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Pro Forma Excess Concentration Balances will be measured on each day
during each Distribution Period with respect to Obligors for such period.
For purposes of this definition, all Obligors that are Affiliates of each
other shall be treated as a single Obligor.
"Pro Forma Ratings Factor" means 1.5.
"Pro Forma Reserve Ratio" means, on any Business Day, the greatest
of (a) 13.5%, (b) the Loss Reserve Ratio (calculated using the Pro Forma
Ratings Factor), and (c) the Loss Reserve Ratio (Z-value) (calculated
using the Class B Z-value).
"Rating Agency" means either of S&P and DCR.
"Remaining Payment Term" shall mean, as calculated in each Monthly
Report as of the most recently ended Cut-Off Date, with respect to any
Receivable, the number of days remaining between such Cut-Off Date and its
due date (such number not to be less than zero).
"Remaining Payment Term Adjustment" shall mean, as calculated in
each Monthly Report as of the most recently ended Cut-Off Date, the result
of (i) (A) (1) the aggregate Remaining Payment Term Weightings divided by
the aggregate Unpaid Balance of all Eligible Receivables as of such Cut-
Off Date minus (2) 60, divided by (B) 60, multiplied by (ii) 0.4.
"Remaining Payment Term Weightings" shall mean, as calculated in
each Monthly Report as of the most recently ended Cut-Off Date, with
respect to each Eligible Receivable, the product of (i) the Unpaid Balance
of such Receivable as of such Cut-Off Date multiplied by (ii) the
Remaining Payment Term with respect to such Receivable.
"Required Persons" means
(i) for the purposes of instructing the Trustee to
declare that the Early Amortization Period has commenced pursuant
to Section 6.2. either (x) Holders of Class A Certificates whose
aggregate Class Percentages (as defined in the Class A
Certificate Purchase Agreement) exceed 66_% or (y) Holders of
Class B Certificates whose aggregate Class Percentages (as
defined in the Class B Certificate Purchase Agreement) exceed
66_%; and
(ii) for all other purposes, the Agent.
"Required Receivables" means, on any Business Day:
(a) So long as an Early Amortization Period has not
commenced, the result of the following formula:
SIA + CCRR X R
(1 - ▇▇▇▇) NER
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where:
SIA = the Specified Invested Amount;
CCRR = the Carrying Cost Receivables Reserve, as
reported in the Daily Report for that
Business Day;
▇▇▇▇ = the Class A Reserve Ratio in effect for that
Business Day;
R = the aggregate Unpaid Balance of
Receivables held by the Trust as
reported in the Daily Report for that
Business Day; and
NER = the Net Eligible Receivables minus the
Class A Restrictive Components, each as
reported in the Daily Report for that
Business Day.
(b) If an Early Amortization Period has commenced, the
result of the following formula:
ASIA + ASA + UCCRR
where:
ASIA = the Adjusted Specified Invested Amount,
which shall be the Specified Invested
Amount on that Business Day (which
shall equal the Specified Invested
Amount, reduced (but not below zero) by
the amount of all Investor Write-Offs
(net of Investor Allocable Recoveries
and Investor Allocable Dilution
Adjustments that have been applied to
reinstate the Invested Amount));
ASA = the Available Subordinated Amount on
that Business Day; and
UCCRR = the Unfunded Carrying Cost Receivables Reserve
on that Business Day.
.
"Revolving Period" means the period beginning on the Closing Date
and ending on the day before the first day of the Amortization Period or
an Early Amortization Period.
"Series Allocable Dilution Adjustments" means, for any ASA
Measuring Period, the product of the aggregate amount of payments pursuant
to Section 3.1 of the Purchase Agreement or pursuant to the Seller
Guaranty received during that ASA Measuring Period relating to Dilution
that occurred prior to that ASA Measuring Period, multiplied by the Series
Loss Allocation Percentage as of the beginning of that ASA Measuring
Period.
"Series 1996-1" is defined in the preamble.
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"Series 1996-1 Certificates" means any of the Class A Certificates
and the Class B Certificates.
"Specified Invested Amount" means (i) during the Revolving Period,
the Invested Amount, and (ii) thereafter, the Invested Amount as of the
last day of the Revolving Period.
"Specified Reserves" is defined in Section 4.10.
"Stated Amount" means as to any Certificate, the initial maximum
principal amount that may be required to be funded by the Holder of such
Certificate, as such amount may be reduced pursuant to Section 2.3 of the
Series A Certificate Purchase Agreement.
"Tranche" means an ABR Tranche or a Eurodollar Tranche.
"Transferor Indemnified Losses" is defined in Section 7.2.
"Transferor Indemnified Party" is defined in Section 7.2.
"Transferor Payment Percentage" means, on any Business Day, the
difference of 100% minus the Investor Allocation Percentage on that
Business Day.
"Trustee One-Time Fees" means all amounts payable to the Trustee
pursuant to the last sentence of Section 10.2(b) of the Pooling Agreement
(if any).
"Unapplied Cash" means, on any Business Day, available funds
received in the Master Collection Account and reflected in the Daily
Report for that Business Day that have not been applied as Collections on
a particular Receivable on or prior to the time as of which that Daily
Report is prepared.
"Unfunded Carrying Cost Receivables Reserve" means, on any
Business Day falling in an Early Amortization Period, the difference (but
not less than zero) of (a) the Carrying Cost Receivables Reserve as of the
Early Amortization Calculation Date, minus (b) the aggregate Collections
deposited into the Carrying Cost Account during the portion of the Early
Amortization Period up to and including that Business Day.
"Unmatured Early Amortization Event" means an event or condition
that, upon the giving of notice or the passage of time, would become an
Early Amortization Event.
"Z-value" means the Class A Z-value or the Class B Z-value, as
specified in each calculation where the Z-value is used.
SECTION 1.2 Incorporation of Terms. The terms of the Pooling
Agreement are incorporated in this Supplement as if set forth in full
herein. As supplemented by this
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Supplement, the Pooling Agreement is in all respects ratified and
confirmed and both together shall be read, taken and construed as one and
the same agreement. If the terms of this Supplement and the terms of the
Pooling Agreement conflict, the terms of this Supplement shall control
with respect to the Series 1996-1 Certificates.
ARTICLE II
DESIGNATION
SECTION 2.1 Designation. There is hereby created a Series to be
known as the "Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇," consisting of two classes: the
$60,000,000 Variable Rate Class A Trade Receivables Backed Certificates,
Series 1996-1 (the "Class A Certificates"); and the $10,000,000 Variable
Rate Class B Trade Receivables Backed Certificates, Series 1996-1 (the
"Class B Certificates"). Subject to the conditions set forth in Article
II, Trustee shall authenticate and deliver the Class A Certificates and
the Class B Certificates, to or upon the order of Transferor in the
aggregate principal amount indicated for each above.
ARTICLE III
CONDITIONS TO ISSUANCE
SECTION 3.1 Conditions to Issuance. Trustee will not authenticate
the Series 1996-1 Certificates unless all conditions to the issuance of
the Series 1996-1 Certificates under Section 6.10 of the Pooling Agreement
shall have been satisfied.
ARTICLE IV
PAYMENTS AND ALLOCATIONS
SECTION 4.1 Interest; Additional Amounts. (a) Subject to Section
4.1 of the Class A Certificate Purchase Agreement, Transferor may from
time to time allocate the outstanding principal amount under the Class A
Certificates to one ABR Tranche and up to three Eurodollar Tranches
(although the total number of tranches may not exceed three at any one
time). Interest on each Tranche shall be payable on the Interest Payment
Date applicable to such Tranche.
(b) Interest on a Eurodollar Tranche of the Class A Certificates
shall accrue during any Interest Period at a rate per annum equal to LIBOR
plus the applicable Class A Certificate Spread and shall be calculated on
the basis of actual days over a year of 360 days.
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(c) Interest on an ABR Tranche of the Class A Certificates shall
accrue during any Interest Period at the Alternate Base Rate in effect
from time to time plus the applicable Class A Certificate Spread and shall
be calculated on the basis of actual days over a year of 360 days.
(d) Interest on the Class B Certificates shall accrue during any
Distribution Period at a rate per annum equal to LIBOR plus the Class B
Certificate Spread and shall be calculated on the basis of actual days
over a year of 360 days.
(e) Interest with respect to the Series 1996-1 Certificates due
but not paid on any Distribution Date or the last day of an Interest
Period, as the case may be, will be due on demand with additional interest
on the amount at 2% per annum above the Alternate Base Rate to the extent
permitted by law (and such interest will be compounded daily); provided,
however, that Transferor may direct any such overdue interest (together
with such additional interest thereon) to be paid on any Business Day
prior to such next Distribution Date or last day of the next Distribution
Period from funds on deposit in the Carrying Cost Account.
(f) Non-Usage Fees shall be payable with respect to the Series
1996-1 Certificates at a daily rate equal to (i) the Non-Usage Fee Rate
multiplied by (ii) the remainder of (A) the Stated Amount minus (B) the
Class A Invested Amount on each day divided by (iii) 360.
(g) Trustee One-Time Fees shall also be payable with respect to
the Series 1996-1 Certificates as specified in the Pooling Agreement and
to the extent (but only to the extent) that funds become available for
such Trustee One-Time Fees in accordance with Sections 4.3 and 4.4.
(h) Additional Amounts shall also be payable with respect to the
Series 1996-1 Certificates as specified in the Certificate Purchase
Agreements and to the extent (but only to the extent) that funds become
available for such Additional Amounts in accordance with Sections 4.3 and
4.4.
SECTION 4.2 Daily Calculations and Series Allocations. On each
Business Day, Servicer shall calculate the Series Collection Allocation
Percentage for Series 1996-1 (and, if necessary for that calculation, the
Required Receivables), the Carrying Cost Cash Required Amount and, during
the Revolving Period and the Amortization Period, the Base Amount. On each
Business Day during the Revolving Period or the Amortization Period,
Servicer shall also determine whether the Net Invested Amount is greater
than, equal to or less than the Base Amount.
Pursuant to Section 4.3 of the Pooling Agreement, Servicer shall
allocate the Series Collection Allocation Percentage of available funds
received in the Master Collection Account since the preceding Business
Day's allocation to Series 1996-1. The portion of funds so
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allocated, together with any funds released from the Equalization Account
in accordance with Section 4.5 on that Business Day, are called the "Daily
Series Collections."
SECTION 4.3 Allocations of Daily Series Collections During
Revolving Period. On each Business Day falling in the Revolving Period,
Servicer shall allocate the Investor Allocation Percentage of the Daily
Series Collections to the following purposes, in the priority indicated
(and to the extent of Daily Series Collections available):
first, to the Carrying Cost Account until the amount
allocated to the Carrying Cost Account equals the Carrying Cost
Cash Required Amount;
second, if Transferor shall have notified the Required
Persons in accordance with Section 3.1 of the Class A Certificate
Purchase Agreement that it desires to reduce the Invested Amount,
to the Principal Funding Account until the funds on deposit in
that account equal the amount of such reduction;
third, if the Net Invested Amount is greater than the
Base Amount, to the Equalization Account in an amount sufficient
to reduce the Net Invested Amount to an amount equal to the Base
Amount;
fourth, to hold in the Master Collection Account the
amount necessary to pay on the next Distribution Date all Trustee
One-Time Fees payable to the Trustee; and
fifth, to hold in the Master Collection Account the
amount necessary to pay on the next Distribution Date all
Additional Amounts payable to the Holders.
On such Business Day, Servicer shall allocate the remainder of
Daily Collections to make current and/or deferred transfer payments to
Transferor in respect of the Transferor Certificate, provided that
Transferor may, from time to time, direct Servicer to direct Trustee to
hold all or part of the funds to be paid pursuant to this sentence in the
Master Collection Account to be applied as Daily Series Collections on the
following Business Day.
If, on any day, the amount of Collections that is then allocated
to the Carrying Cost Account exceeds the amount of Collections that is
then required to be allocated to the Carrying Cost Account, Servicer shall
reallocate such Collections on such day to one or more of the obligations
described in priorities second through fifth, and in the preceding
paragraph, in the order of priority set forth therein.
SECTION 4.4 Allocations of Daily Series Collections (Other than
During the Revolving Period). On each Business Day (i) not falling in the
Revolving Period and (ii) prior to or on the Fully Funded Date, Servicer
shall allocate the Daily Series Collections to the following purposes, in
the priority indicated (and to the extent of Daily Series Collections
available):
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first, to the Carrying Cost Account to the extent that
the balance therein is less than the amount of Current Carrying
Costs (other than any Servicing Fee payable to any ICP Person)
payable on the Distribution Date relating to the Calculation
Period during which such Business Day falls;
second, to the Principal Funding Account and to
Transferor (or, prior to the Holdback Account Termination Date,
to the Holdback Account) in the following amounts:
(a) the amount to be transferred to the
Principal Funding Account shall equal the product of (i)
the Investor Allocation Percentage, multiplied by (ii)
the excess of the Daily Series Collections over the
amount allocated on that Business Day pursuant to
priority first, provided that the aggregate amount so
transferred on such Business Day shall in no event exceed
the Net Invested Amount prior to such transfer; and
(b) the amount to be transferred to Transferor
(or, prior to the Holdback Account Termination Date, to
the Holdback Account) shall equal the product of (i) the
Transferor Payment Percentage, multiplied by (ii) the
excess of the Daily Series Collections over the amount
allocated on that Business Day pursuant to priority
first;
the amount allocated to the Principal
Funding Account pursuant to clause (a)
of this priority second shall be
divided as follows:
(1) first such amount shall
be allocated to the sub-account for the
Class A Certificates, but the amount
deposited in such sub-account shall in
no event cause the balance therein to
exceed the Class A Invested Amount; and
(2) any remaining amount
shall be allocated to the sub-account
for the Class B Certificates, but the
amount deposited in such sub-account
shall in no event cause the balance
therein to exceed the Class B Invested
Amount;
third, to hold in the Master Collection Account the
amount necessary to pay on the next Distribution Date all Trustee
One-Time Fees payable to the Trustee;
fourth, to hold in the Master Collection Account the
amount necessary to pay on the next Distribution Date all
Additional Amounts payable to the Holders;
fifth, to pay any Servicing Fee payable to any ICP Person
on the Distribution Date relating to the Calculation Period
during which such Business Day falls; and
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sixth, the balance to Transferor, provided that prior to
the Holdback Account Termination Date, amounts payable to
Transferor pursuant to this priority sixth shall be deposited
into the Holdback Account and held as provided below.
The "Holdback Account Termination Date" shall be the earlier to
occur of (i) the date that falls twelve months after the beginning of the
Early Amortization Period and (ii) the Fully Funded Date. If at any time
prior to the Holdback Account Termination Date, the amount of funds on
deposit in the Holdback Account exceeds the difference of (1) the Investor
Repayment Amount minus (2) the amount of funds then held in the Carrying
Cost Account and the Principal Funding Account that are available to pay
the Investor Repayment Amount, then the amount of such excess funds shall
be released from the Holdback Account and paid to Transferor as current
and/or deferred transfer payments. On the Holdback Account Termination
Date, Servicer shall calculate an amount equal to (x) the aggregate amount
of funds held in the Holdback Account, minus (y) the aggregate Investor
Allocable Dilution for the Early Amortization Period as to which no Series
Allocable Dilution Adjustments have been received. The amount of such
difference, if positive, will be first applied to any outstanding Current
Carrying Costs or Additional Amounts, and then the balance will be paid
to Transferor. The funds remaining in the Holdback Account after the
payment of such amount to Transferor shall be transferred to the Master
Collection Account and applied to the items listed in priorities first
through sixth above, in that order (except that no such funds shall be
allocated to Transferor or the Holdback Account pursuant to priority
second and the amount allocable to the Principal Funding Account shall
computed using an Investor Allocation Percentage of 100%).
SECTION 4.5 Withdrawals from the Equalization Account. On any
Business Day during the Revolving Period on which no Early Amortization
Event or Unmatured Early Amortization Event exists, Servicer may instruct
Trustee in writing to withdraw funds from the Equalization Account and
apply such funds as Daily Series Collections, so long as the Net Invested
Amount would not exceed the Base Amount after giving effect to such
transfer and application. On the first day of the Amortization Period or
an Early Amortization Period, Servicer shall instruct Trustee to transfer
the entire balance in the Equalization Account to the Principal Funding
Account.
SECTION 4.6 Available Subordinated Amount. (a) If an Early
Amortization Period begins, Servicer shall promptly calculate the
Available Subordinated Amount as of the Early Amortization Calculation
Date and report such amount in the Daily Report for the first day in the
Early Amortization Period. Servicer shall also calculate the Available
Subordinated Amount as of each Cut-Off Date falling in the Early
Amortization Period, such calculation to be reflected in the related
Monthly Report.
(b) The Available Subordinated Amount as of the Early
Amortization Calculation Date shall equal the product of (x) the Investor
Allocation Percentage, multiplied by (y) the result of:
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(i) the product of the Unpaid Balance of Receivables held
by Trustee at the opening of business on the Early Amortization
Calculation Date, multiplied by the Series Collection Allocation
Percentage on that date; minus
(ii) the sum of (i) the lesser of (A) the Base Amount and
(B) the Net Invested Amount and (ii) the Carrying Cost
Receivables Reserve at the opening of business on the Early
Amortization Calculation Date.
(c) The Available Subordinated Amount, as of any Cut-Off Date in
the Early Amortization Period, shall equal the result of:
(i) the Available Subordinated Amount as of the
preceding Cut-Off Date (or as of the Early Amortization
Calculation Date, in the case of the first Cut-Off Date falling
in the Early Amortization Period); minus
(ii) the Investor Allocable Loss Amount with respect to
the ASA Measuring Period ending on that Cut-Off Date; minus
(iii) any Investor Allocable Dilution with respect to
the ASA Measuring Period ending on that Cut-Off Date; plus
(iv) subject to Sections 4.7 and 4.8, the Investor
Allocable Recoveries and Investor Allocable Dilution Adjustments
with respect to the ASA Measuring Period ending on that Cut-Off
Date.
(d) Notwithstanding the foregoing, in no event shall the
Available Subordinated Amount at any time be less than zero or greater
than the initial Available Subordinated Amount calculated pursuant to
subsection (b).
SECTION 4.7 Write-Offs and Recoveries. (a) In each Monthly
Report required to be delivered during the Early Amortization Period,
Servicer shall calculate the Investor Write-Offs and the Investor
Allocable Recoveries for the most recently ended ASA Measuring Period.
(b) If the Investor Write-Offs calculated in any Monthly Report
exceed zero, the Invested Amount and the outstanding principal amount of
the Series 1996-1 Certificates shall be reduced by the amount of the
Investor Write-Offs with effect from the related Distribution Date. Any
such reduction shall be allocated to the Class B Invested Amount until the
Class B Invested Amount has been reduced to zero. Any remaining reduction
shall be allocated to the Class A Invested Amount.
(c) If the Invested Amount has been reduced on account of any
Investor Write-Offs, then any Investor Allocable Recoveries with respect
to any Calculation Period ending after the
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reduction takes place shall be applied to reinstate the Invested Amount
and the outstanding principal amount of the Series 1996-1 Certificates,
to the extent of such prior reductions that have not previously been
reinstated, with effect from the related Distribution Date. Any such
reinstatement shall be allocated to the Class A Invested Amount until all
prior reductions to the Class A Invested Amount on account of Investor
Write-Offs have been reinstated. Any remaining reinstatement shall be
allocated to the Class B Invested Amount.
(d) If Investor Allocable Recoveries applied pursuant to
subsection (c) above to reinstate the Invested Amount on any Distribution
Date, then Investor Allocable Recoveries shall be applied to increase the
Available Subordinated Amount on the same Distribution Date only to the
extent of the excess, if any, of the Investor Allocable Recoveries, minus
the amount of Investor Allocable Recoveries so applied to reinstate the
Invested Amount.
(e) The outstanding principal amount under the Class A
Certificates shall be reduced by any reduction, and increased by any
reinstatement, of the Class A Invested Amount pursuant to this Section 4.7
or Section 4.8, in the amount of such reduction or reinstatement. The
outstanding principal amount under the Class B Certificates shall be
reduced by any reduction, and increased by any reinstatement, of the Class
B Invested Amount pursuant to this Section 4.7 or Section 4.8, in the
amount of such reduction or reinstatement.
SECTION 4.8 Certain Dilution in an Amortization Period or Early
Amortization Period. (a) In each Monthly Report required to be delivered
during the Amortization Period or any Early Amortization Period, Servicer
shall calculate the Investor Allocable Dilution and the Series Allocable
Dilution Adjustments for the most recently ended Calculation Period or ASA
Measuring Period.
(b) If the Investor Allocable Dilution calculated in any Monthly
Report is greater than zero, and there are funds in the Holdback Account,
then those funds (up to an amount equal to the amount of the Investor
Allocable Dilution), shall be allocated (i) first, in accordance with
priority first of the first paragraph of Section 4.4, (ii) second, to the
Principal Funding Account (in accordance with priority second of the first
paragraph of Section 4.4), so long as the aggregate amount on deposit
therein does not exceed the Invested Amount and (iii) third, in accordance
with priorities third through sixth of the first paragraph of Section 4.4,
in that priority.
(c) If the Available Subordinated Amount or the Invested Amount
has been reduced on account of any Investor Allocable Dilution, then (i)
any Series Allocable Dilution Adjustments with respect to any Calculation
Period or ASA Measuring Period ending after the reduction takes place and
(ii) any additional funds deposited in the Holdback Account (the "Investor
Allocable Dilution Adjustments") shall be allocated (x) first, to
reinstate the Invested Amount and the outstanding principal amount of the
Series 1996-1 Certificates, and (y) second, to reinstate the Available
Subordinated Amount, in each case to the extent not previously reinstated.
Any amount so allocated on any day shall be allocated (i) first, in
accordance with priority first of Section 4.4, (ii) second, to the
Principal Funding Account, so long as the
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aggregate amount on deposit therein does not exceed the Invested Amount
and (iii) third, in accordance with priorities third through sixth of the
first paragraph of Section 4.4, in that priority.
SECTION 4.9 Pre-Closing Modification Notification. The Agent,
in its sole discretion, shall be entitled to deliver notice to the
Transferor prior to the initial Purchase under the Certificate Purchase
Agreements which shall have the following effect:
(a) the Interest Period for each Tranche shall end on the
Distribution Date next succeeding the day on which such Tranche is
designated;
(b) with respect to each Tranche for which the applicable
Interest Period does not commence on the first day of a Distribution
Period, interest will accrue at a rate equal to the rate upon which
interest would otherwise accrue pursuant to Section 4.1(c); and
(c) a fee (a "Minimum LIBOR Return Fee") would be payable to
the Purchasers on each Distribution Date equal to the product of (i) the
excess, if any, of (A) LIBOR over (B) such Purchaser's average return on
investments in cash or cash equivalents during the preceding Distribution
Period multiplied by (ii) the result of (A) the Stated Amount minus (B)
the weighted average Class A Invested Amount during such Distribution
Period.
SECTION 4.10 Calculations of Reserves. In calculating each of the
Co-Op Advertising Reserves, Cash Discount Reserves, Excess Foreign
Currency Receivables, and the amounts in each of the clauses of the
definition of Excess Foreign Obligor Balances(collectively, the "Specified
Reserves"), Servicer may (but is not required to) deduct from the
Receivables of each Obligor whose Receivables are included in the
calculation of that Specified Reserve (as to any Specified Reserve, the
"Applicable Receivables") an amount equal to any Class B Excess
Concentration Balance applicable to that Obligor. In addition, on each
Business Day Servicer may calculate the Specified Reserves in any order
that it chooses. After having calculated any particular Specified Reserve
on a Business Day, Servicer may designate one or more of the Applicable
Receivables for that Specified Reserve, with an aggregate Unpaid Balance
equal to the amount of that Specified Reserve (and for this purpose one
such Applicable Receivable may be so designated as to only the necessary
portion of its Unpaid Balance), as "Designated Receivables." Such
designation shall be made in an exhibit to the applicable Daily Report.
In calculating each of the remaining Specified Receivables on that
Business Day, each of the Designated Receivables shall be deemed not to
be Eligible Receivables.
SECTION 4.11 Investment of Funds in Transaction Accounts. Funds
invested in Eligible Investments in the Transaction Accounts in accordance
with Section 4.4 of the Pooling Agreement shall mature not later than: (i)
with respect to the Equalization Account, the Master Collection Account
and the Holdback Account, the next succeeding Distribution Date; and (ii)
with respect to the Principal Funding Account and the Carrying Cost
Account, the Interest Payment Date(s) on which such funds will be required
to be paid out in accordance with the then outstanding Tranches (so that,
for example, if two tranches are outstanding, funds up to the
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amounts required be repaid on the earlier Interest Payment Date shall be
invested with maturities not later than such Interest Payment Date and
funds in excess thereof may be invested with maturities not later than the
second Interest Payment Date).
ARTICLE V
DISTRIBUTIONS AND REPORTS
SECTION 5.1 Distributions. On each Interest Payment Date, Trustee
shall, in accordance with instructions set out in the applicable Daily
Report (following delivery within the time period required under Section
3.5(c) of the Pooling Agreement), distribute to the Holders of Class A
Certificates at or before 2:00 p.m., New York City time, all accrued and
unpaid interest on the Class A Certificates, and any additional interest
payable to the Holders of Class A Certificates pursuant to Section 4.1,
to the extent funds are available for such payment in the Carrying Cost
Account. In addition, on each Distribution Date and (with respect to
clause (b) below) each Principal Payment Date, Trustee shall, in
accordance with instructions set out in the applicable Daily Report
(following delivery within the time period required under Section 3.5(c)
of the Pooling Agreement), distribute to the Holders at or before 2:00
p.m., New York City time, the following amounts:
(a) Non-Usage Fees on the Class A Certificates and
accrued and unpaid interest on the Class B Certificates, and any
additional interest payable to the Holders of Class B
Certificates pursuant to Section 4.1, to the extent funds are
available for such payment in the Carrying Cost Account (and in
the event of any shortfall, the Holders of Class A Certificates
shall first be paid such Non-Usage Fees, and the Holders of Class
B Certificates shall second be paid such interest); provided that
if any interest which was due and payable to the Holders of Class
A Certificates on any Interest Payment Date preceding such
Distribution Date pursuant to the first sentence of this Section
5.1 has not yet been paid in full, then before any payments are
made to the Holders pursuant to this clause (a), all such overdue
interest shall first be paid to the Holders of Class A
Certificates;
(b) on each Principal Payment Date, all funds deposited
in the Principal Funding Account on or prior to the most recent
Cut-Off Date (but in no event in excess of the Invested Amount)
shall be distributed (subject to any applicable notification
period) in reduction of the Invested Amount; all such amounts on
deposit in the Principal Funding Account shall be paid to the
Holders of Class A Certificates until they have been paid or
provided for in full before any such amounts are paid to the
Holders of Class B Certificates;
(c) if, on the Expected Final Payment Date or any
Distribution Date falling in an Early Amortization Period, the
funds on deposit in the Carrying Cost Account (less any Servicing
Fee payable on that day to anyone other than an ICP Person) will
be
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equal to or greater than the Invested Amount (after giving effect
to the distribution required by subsection (b)), then an amount
equal to such remaining Invested Amount shall be withdrawn from
the Carrying Cost Account and distributed in reduction of the
Invested Amount; all such amounts withdrawn from the Carrying
Cost Account shall be paid to the Holders of Class A Certificates
until they have been paid or provided for in full before any such
amounts are paid to the Holders of Class B Certificates;
(d) any Trustee One-Time Fees payable to the Trustee to
the extent that funds have been allocated for those Trustee One-
Time Fees pursuant to priority fourth of Section 4.3 or priority
third of Section 4.4; and
(e) any Additional Amounts payable with respect to
Series 1996-1 Certificates to the extent that funds have been
allocated for those Additional Amounts pursuant to priority fifth
of Section 4.3 or priority fourth of Section 4.4 (and in the
event of any shortfall, Additional Amounts shall be paid first to
Holders of Class A Certificates (pro rata among such Holders
according to the Additional Amounts owed to each of them), and
second to Holders of Class B Certificates (pro rata among such
Holders according to the Additional Amounts owed to each of
them)).
On each Distribution Date, Trustee shall also, in accordance with
instructions set out in the applicable Daily Report (following delivery
within the time period required under Section 3.5(c) of the Pooling
Agreement), distribute at or before 2:00 p.m., New York City time, the
Servicing Fee (after having made the distributions specified in Section
5.1(a) herein) to the Servicer to the extent that funds are available for
that purpose in the Carrying Cost Account.
On any Business Day, Trustee shall, in accordance with
instructions set out in the applicable Daily Report (following delivery
within the time period required under Section 3.5(c) of the Pooling
Agreement), distribute to the Holders, at or before 2:00 p.m., New York
City time, overdue interest payable pursuant to Section 4.1(e) on such
Business Day, to the extent funds are available for such payment in the
Carrying Cost Account and such other fees (including Minimum LIBOR Return
Fees, Commitment Reduction Fees, Breakage Fees, Non-Usage Fees,
Administration Fees, Commitment Fees and Minimum Usage Fees) as shall be
due and owing on such day.
All distributions pursuant to this Section 5.1 shall be
distributed to the Holders in immediately available funds by wire
transfer.
SECTION 5.2 Payments in Respect of Transferor Certificate. On
each day on which funds are allocated pursuant to Sections 4.3 and 4.4
(and subject to the terms of Section 4.4 relating to the Holdback
Account), Trustee shall, in accordance with instructions set out in the
applicable Daily Report (following delivery within the time period
required under Section 3.5(c) of the Pooling Agreement), distribute to
Transferor, in respect of the Transferor Certificate, at or before 2:00
p.m., New York City time, all funds allocated for that purpose in
accordance with those Sections. In addition, after the Invested Amount
has been repaid in full
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and all interest and Additional Amounts owed to the Holders and the Agent
have been paid, any additional funds on deposit in the Carrying Cost
Account, the Equalization Account or the Principal Funding Account shall
similarly be paid to Transferor, at or before 2:00 p.m., New York City
time, in respect of the Transferor Certificate. Any funds paid to the
Transferor pursuant to this Section 5.2 shall be subject to any then-
current indemnity obligations of the Transferor pursuant to Section 7.2
of this Supplement, Section 7.3(a) of the Pooling Agreement, Section 10.5
of the Class A Certificate Purchase Agreement and Section 8.5 of the Class
B Certificate Purchase Agreement.
SECTION 5.3 Daily Reports and Monthly Reports. Each Daily Report
and Monthly Report shall be substantially in the applicable form set out
in Exhibit B or C or in such other form as may be satisfactory to Servicer
and Trustee and consistent with the terms of this Supplement and the
Pooling Agreement. Copies of each Monthly Report and, upon request, the
Daily Report shall be provided free of charge by the Servicer to the
Holders of Series 1996-1 Certificates.
SECTION 5.4 Annual Tax Information. On or before February 15 of
each calendar year, beginning with calendar year 1997, Servicer, on behalf
of Trustee, shall furnish or cause to be furnished to each Person who at
any time during the preceding calendar year was a Holder the information
for the preceding calendar year, or the applicable portion thereof during
which the Person was a Holder, as is required to be provided by an issuer
of indebtedness under the Internal Revenue Code to the holders of the
issuer's indebtedness and such other customary information as is necessary
to enable such Holders to prepare their federal income tax returns.
Notwithstanding anything to the contrary contained in this Agreement,
Trustee shall, to the extent required by applicable law, from time to time
furnish to the appropriate Persons a Form 1099-INT within the period
required by applicable law.
SECTION 5.5 Periodic Perfection Certificate. On or before March
15 of each calendar year, beginning with calendar year 1997, Servicer, on
behalf of Trustee, shall furnish or cause to be furnished to Trustee and
the Holders an Officer's Certificate setting forth a list of all changes
in (a) the name, identity or corporate structure of Transferor or any
Seller and (b) the chief executive office of Transferor or any Seller (or
in the place of business of Transferor or any Seller that has only one
place of business) that have taken place since the date of the Officer's
Certificate most recently delivered pursuant to this Section 5.5 (or since
the Closing Date, in the case of the first such Officer's Certificate to
be delivered), or indicating that no such events have taken place, and
stating in each case what filings of UCC financing statements, or
amendments thereto, relating to the Transaction Documents have been made
in connection with each such event (identifying the date and filing index
numbers for each). Any financing statement identified in such an Officer's
Certificate delivered to Trustee shall be deemed to have been identified
to Trustee in writing for purposes of subsection 11.1(c)(v) of the Pooling
Agreement. If any such new UCC financing statements are filed, Servicer
shall cause Trustee to be named as secured party (in the case of any
filing against Transferor) or assignee of the secured party (in the case
of any filing against a Seller).
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ARTICLE VI
EARLY AMORTIZATION EVENTS
SECTION 6.1 Early Amortization Events. Each of the following
shall constitute an "Early Amortization Event":
(a) any of the following shall occur;
(i) failure on the part of Transferor
or Servicer to make any payment of the principal
amount of or any interest on the Series 1996-1
Certificates when due, or to make any deposit
required by the terms of any Transaction
Document within one Business Day after the date
the deposit is required to be made, or to make
any other payment required by the terms of any
Transaction Document on or before three Business
Days after the date such payment is required to
be made; or
(ii) failure on the part of Servicer to
deliver a Daily Report within the time period
required under Section 3.5(c) of the Pooling
Agreement, and continuance of such failure for
three Business Days; provided that if the
Servicer shall have estimated the Base Amount in
the Daily Report for one or more days due to
adverse circumstances beyond its control (as
described in, and subject to the limitations in,
such Section 3.5(c)), then the three day grace
period specified in this clause (ii) shall be
reduced by the number of days on which the Base
Amount was estimated (of, if such number of days
exceeds three, shall be reduced to zero); or
(iii) failure on the part of the
Servicer to deliver a Monthly Report within the
time required under Section 3.5(d) of the
Pooling Agreement and the applicable Supplement,
and continuance of such failure for three
Business Days; or
(iv) failure on the part of Transferor,
Guarantor, Servicer or any Seller duly to
observe or perform Section 6.1(f), 6.1(h),
6.1(i), 6.1(j), 6.3(a), 6.3(b), 6.3(c), 6.3(e),
6.3(f) or 6.3(g) of the Purchase Agreement or
Section 7.2(c), 7.2(d), 7.2(e), 7.2(f), 7.2(h),
7.2(i), 7.2(j), 7.2(k), 7.2(m) or 7.2(o) of the
Pooling Agreement, which failure continues
unremedied for a period of five Business Days;
or
(v) failure on the part of Transferor,
Guarantor, Servicer or any Seller duly to
observe or perform any other covenant or
agreement set forth in any Transaction Document,
which failure continues unremedied for a period
of 30 days; or
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(vi) Guarantor gives notice of
termination of the Seller Guaranty;
(b) any representation or warranty made by a Seller in
subsection 5.1(d), 5.1(k), 5.1(n), 5.1(o) or 5.1(r) of the
Purchase Agreement or by Transferor in subsection 2.3(a)(i),
2.3(a)(ii) or 7.1(i) of the Pooling Agreement shall prove to have
been incorrect in any material respect when made, and continues
to be incorrect in any material respect for a period of five
Business Days, or any other representation or warranty made by
Transferor, Servicer or any Seller in any Transaction Document
shall prove to have been incorrect in any material respect when
made, and continues to be incorrect in any material respect for
a period of 30 days; provided that a mistake in the
representation of a Receivable as an Eligible Receivable or the
breach of a representation and warranty with respect to a
Receivable shall not constitute an Early Amortization Event
unless and until the applicable Seller has failed to make the
cash payments (if any) owed under Sections 3.1 of the Purchase
Agreement in respect of such mistake or breach (it being
understood that certain of such mistakes or breaches may result
in a non-cash adjustment under the Purchase Agreement);
(c) a Bankruptcy Event shall occur with respect to
Transferor, Servicer, Guarantor or any Seller, or Transferor
shall become unable, for any reason, to transfer Receivables or
other Transferred Assets to the Trust in accordance with the
provisions of this Agreement and the Pooling Agreement; provided
that if, at the time any event that would, with the passage of
time, become a Bankruptcy Event occurs as a result of a
bankruptcy proceeding being filed against Transferor or any
Seller, then, on and after the day on which the bankruptcy
proceeding is filed until the earlier to occur of the dismissal
of the proceeding and the Early Amortization Commencement Date,
Transferor shall not purchase Receivables and Related Assets from
the affected Seller or, if Transferor is the subject of the
proceeding, transfer Receivables and Related Transferred Assets
to the Trust;
(d) the Trust or Transferor shall be required to be
registered as an "investment company" under and within the
meaning of the Investment Company Act of 1940, as amended;
(e) the Net Invested Amount exceeds the Base Amount for
a period of two or more consecutive Business Days;
(f) a Servicer Default shall have occurred and shall not
have been remedied;
(g) ICP shall cease to own, directly or indirectly, 100%
of the equity interests of Transferor;
(h) the Internal Revenue Service or the PBGC files one
or more Tax or ERISA Liens against the assets of Transferor or
any Seller (including Receivables);
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(i) the cessation of, or the failure to create, a valid
first-priority perfected ownership or security interest in favor
of Trustee in the Receivables or the rights of Transferor under
the Purchase Agreement;
(j) the aggregate outstanding principal amount of the
Buyer Notes exceeds the Maximum Exposure Amount for five or more
consecutive Business Days; or
(k) any foreclosure or similar proceeding in respect of
any adverse claim on any Buyer Note or the Transferor's common
stock shall have been commenced; or title to any Buyer Note or
Transferor's common stock shall pass to the holders of such
adverse claim.
SECTION 6.2 Early Amortization Period. Upon the occurrence and
continuance of any Early Amortization Event described in subsections
6.1(c), (d), (i) or (j), an Early Amortization Period shall commence
without any notice or other action on the part of Trustee or the Series
1996-1 Certificateholders, immediately upon the occurrence of such Early
Amortization Event. On the tenth day after Transferor receives notice or
otherwise becomes aware of the occurrence of any Early Amortization Event
described in subsection 6.1(e), an Early Amortization Period shall
commence without any notice or other action on the part of Trustee or the
Series 1996-1 Certificateholders, unless waived by the Required Persons
(except that an Early Amortization Period shall commence immediately upon
notice thereof from Trustee or the Required Persons prior to the running
of such ten day period). Upon the occurrence and continuance of any other
Early Amortization Event, after the applicable grace period, if any, set
forth in such subsection, Trustee may (and, at the direction of the
Required Persons, shall) by notice then given in writing to Transferor and
Servicer, declare that an Early Amortization Period has commenced as of
the date of Transferor's receipt of the notice.
ARTICLE VII
OPTIONAL REDEMPTION; INDEMNITIES
SECTION 7.1 Optional Redemption of Investor Interests. On any
Distribution Date occurring during an Early Amortization Period with
respect to the Series 1996-1 Certificates on or after the date that the
Invested Amount is reduced to ten percent or less of the sum of the
initial Stated Amounts for the Certificates, Transferor shall have the
option to redeem the Series 1996-1 Series Interest. The purchase price
will be an amount equal to the Invested Amount plus accrued and unpaid
interest (and accrued and unpaid interest with respect to interest that
was due but not paid on any prior Distribution Date) through the day
preceding the Distribution Date at the applicable interest rates (as
specified in Section 4.1) for such Certificates plus the aggregate amount
by which the Invested Amount has been reduced on account of Investor
Write-Offs and Investor Allocable Dilution (and not subsequently
reinstated) plus any Additional Amounts then due. Upon the tender of the
outstanding Certificates of the Series by the Holders, Trustee shall
distribute the amounts, together with all
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funds on deposit in the Principal Funding Account that are allocable to
the Series 1996-1 Certificates, to the Holders of the Series on the next
Distribution Date in repayment of the principal amount and accrued and
unpaid interest owing to the Holders. Following any redemption, the
Holders of the Series shall have no further rights with respect to the
Receivables. In the event that Transferor fails for any reason to deposit
in the Principal Funding Account the aggregate purchase price for the
Series 1996-1 Certificates, payments shall continue to be made to the
Holders of the Series in accordance with the terms of the Pooling
Agreement and this Supplement.
SECTION 7.2 Indemnification by Transferor. Transferor hereby
agrees to indemnify the Trust, Trustee, each Holder of a Series 1996-1
Certificate and each of the successors, permitted transferees and assigns
of any such Person and all officers, directors, shareholders, controlling
Persons, employees, affiliates and agents of any of the foregoing (each
of the foregoing Persons individually being called a "Transferor
Indemnified Party"), forthwith on demand, from and against any and all
damages, losses, claims (whether on account of settlements or otherwise,
and whether or not the relevant Indemnified Party is a party to any action
or proceeding that gives rise to any Transferor Indemnified Losses (as
defined below)), judgments, liabilities and related reasonable costs and
expenses (including reasonable attorneys' fees and disbursements) (all of
the foregoing collectively being called "Transferor Indemnified Losses")
awarded against or incurred by any of them that arise out of or relate to
Transferor's performance of, or failure to perform, any of its obligations
under or in connection with any Transaction Document.
Notwithstanding the foregoing (and with respect to clause (ii)
below, without prejudice to the rights that the Trustee may have pursuant
to the other provisions of this Agreement or the provisions of any of the
other Transaction Documents), in no event shall any Transferor Indemnified
Party be indemnified against any Transferor Indemnified Losses (i)
resulting from gross negligence or willful misconduct on the part of such
Transferor Indemnified Party (or the gross negligence or willful
misconduct on the part of any of such Indemnified Party's officers,
directors, employees, affiliates or agents), (ii) to the extent the same
include Transferor Indemnified Losses in respect of Receivables and
reimbursement therefor that would constitute credit recourse to Transferor
for the amount of any Receivable or Related Transferred Asset not paid by
the related Obligor, (iii) to the extent such Indemnified Losses are or
result from lost profits (other than any prepayment premium or breakage
fee), or (iv) to the extent such Indemnified Losses are or result from
taxes asserted with respect to (A) distributions on the Investor
Certificates (other than any withholding taxes, if and to the extent that
(a) such withholding taxes should have been (but in fact were not)
withheld and paid over by the Trust to the relevant taxing authority, (b)
such taxing authority asserts a claim for such withholding taxes against
the Trust or the Transferor, and (c) the assets of the Trust are
insufficient to satisfy such claim at the time a final determination is
made that such withholding taxes are due and payable) and (B) federal or
other income taxes on or measured by the net income of such Indemnified
Party.
-34-
If for any reason the indemnification provided in this section is
unavailable to a Transferor Indemnified Party or is insufficient to hold
a Transferor Indemnified Party harmless, then Transferor shall contribute
to the amount paid by such Transferor Indemnified Party as a result of any
loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by such Transferor
Indemnified Party on the one hand and Transferor on the other hand, but
also the relative fault (if any) of such Transferor Indemnified Party and
Transferor and any other relevant equitable considerations.
Notwithstanding any provisions contained in any Transaction
Document to the contrary, Transferor shall not, and shall not be obligated
to, pay any amount pursuant to this Section unless and to the extent that
the Transferor has funds available to pay such amounts or funds are
allocated thereafter to the Transferor pursuant to the penultimate
paragraph of Section 4.3 or priority sixth of Section 4.4 of this
Supplement. Any amount which Transferor does not pay pursuant to the
operation of the preceding sentence shall not constitute a claim (as
defined in Sec. 101 of the Bankruptcy Code) against or corporate obligation
of Transferor for any such insufficiency.
SECTION 7.3 Indemnification by Servicer. Servicer agrees that
each Holder of a Series 1996-1 Certificate shall be an "Indemnified Party"
for purposes of the Pooling Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Governing Law. THIS SUPPLEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 8.2 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 together shall constitute one and the same
instrument.
SECTION 8.3 Severability of Provisions. If any one or more of the
provisions or terms of this Supplement shall for any reason whatsoever be
held invalid, then the unenforceable provision(s) or term(s) shall be
deemed severable from the remaining provisions or terms of this Supplement
and shall in no way affect the validity or enforceability of the other
provisions or terms of this Supplement.
SECTION 8.4 Amendment, Waiver, Etc. The provisions of this
Supplement may be amended, modified, or waived, subject to Section 13.1
of the Pooling Agreement, Section 10.1 of the Class A Certificate Purchase
Agreement and Section 7.1 of the Class B Certificate
-35-
Purchase Agreement, from time to time by Servicer, Transferor, Trustee and
each Required Person by a written instrument signed by each of them,
without the consent of any Holders; provided, that such amendment,
modification or waiver shall have the effect specified in clauses (i),
(ii) or (iii) of the Pooling Agreement without obtaining the consent
specified in such clause.
SECTION 8.5 Trustee. Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplement or for or in respect of the recitals contained herein, all of
which recitals are made solely by Transferor and Servicer.
SECTION 8.6 Instructions in Writing. All instructions given by
Servicer to Trustee pursuant to this Supplement shall be in writing, and
may be included in a Daily Report or Monthly Report.
SECTION 8.7 Rule 144A. So long as any of the Series 1996-1
Certificates are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, Transferor shall, unless it becomes
subject to and complies with the reporting requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended, or rule 12g3-
2(b) thereunder, provide to any Holder of such restricted securities, or
to any prospective purchaser of such restricted securities designated by
a Holder, upon the request of such Holder or prospective purchaser, any
information required to be provided by Rule 144A(d)(4) under the Act.
SECTION 8.8 Supplemental Ratings Requirement. So long as any of
the Series 1996-1 Certificates are outstanding, if any provision of the
Purchase Agreement, the Pooling Agreement, this Supplement or the
Certificate Purchase Agreement requires a person or investment to have a
certain rating from S&P, and such person or investment is also rated by
DCR, such provision shall be read to also require a rating from DCR that
is equivalent to the required rating from S&P.
* * * * *
-36-
IN WITNESS WHEREOF, Transferor, Servicer and Trustee have caused
this Supplement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
INTER-CITY PRODUCTS RECEIVABLES
COMPANY, L.P., as Transferor
By: Inter-City Products
Partner Corporation
By:
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
INTER-CITY PRODUCTS CORPORATION
(USA), as Servicer
By:
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
LASALLE NATIONAL BANK, as Trustee
By:
Name:
Title:
EXHIBIT A
EXHIBIT A-Part I
to the Series 1996-1 Supplement
FORM OF
CLASS A, SERIES 1996-1 CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN
CONTRAVENTION OF THAT ACT. THIS CERTIFICATE WILL NOT BE ACCEPTED FOR
REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE SATISFACTORY
TO THE REGISTRAR AND TRANSFER AGENT THAT THE RESTRICTIONS ON TRANSFER SET
FORTH IN THE POOLING AGREEMENT HAVE BEEN COMPLIED WITH.
INTER-CITY PRODUCTS TRADE RECEIVABLES BACKED CERTIFICATES
CLASS A SERIES 1996-1 CERTIFICATE
Maximum Principal Amount:
First Distribution Date: $_______________
THIS CERTIFIES THAT _________________ is the registered owner of
a nonassessable, fully-paid, fractional undivided interest in the Inter-
City Products Receivables Master Trust (the "Trust") that was created
pursuant to (a) the Pooling and Servicing Agreement, dated as of July 25,
1996 (as the same may be amended, supplemented or otherwise modified from
time to time, the "Pooling Agreement"), among Inter-City Products
Receivables Company, L.P., a Tennessee limited partnership,
("Transferor"), INTER-CITY PRODUCTS CORPORATION (USA), a Delaware
corporation, ("Servicer"), and LASALLE NATIONAL BANK, as trustee (together
with its successors and assigns in such capacity, "Trustee") and (b) the
Supplement dated as of the same date relating to the Series 1996-1
Certificates (the "Supplement"). This Certificate is one of the duly
authorized Series 1996-1 Certificates designated and issued under the
Pooling Agreement and the Supplement. Except as otherwise defined herein,
capitalized terms have the meanings that Appendix A to the Pooling
Agreement assigns to them. This Certificate is subject to the terms,
provisions and conditions of, and is entitled to the benefits afforded by,
the Pooling Agreement and the Supplement, to which terms, provisions and
conditions the Holder of this Certificate by virtue of the acceptance
hereof assents and by which the Holder is bound.
Unless the certificate of authentication hereon shall have been
executed by or on behalf of Trustee by the manual signature of a duly
authorized signatory, this Certificate shall not
entitle the Holder hereof to any benefit under the Transaction Documents
or be valid for any purpose.
This Certificate does not represent a recourse obligation of, or
an interest in, Transferor, any Seller, Servicer, Trustee or any Affiliate
of any of them. This Certificate is limited in right of payment to the
Transferred Assets.
By its acceptance of this Certificate, each Holder hereof (a)
acknowledges that it is the intent of Transferor, and agrees that it is
the intent of the Holder that, for purposes of Federal, applicable state
and local income and franchise and other taxes measured by or imposed on
income, the Class A, Series 1996-1 Certificates (including this
Certificate) will be treated as evidence of indebtedness secured by the
Transferred Assets and the Trust will not be characterized as an
association taxable as a corporation or a publicly-traded partnership, (b)
agrees that the provisions of the Transaction Documents shall be construed
to further that intent, and (c) agrees to treat this Certificate for
purposes of Federal, applicable state and local income and franchise and
other taxes measured by or imposed on income as indebtedness.
This Certificate shall be construed in accordance with the laws
of the State of New York, without regard to its conflict of laws
principles, and all obligations, rights and remedies under or arising in
connection with this Certificate shall be determined in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, Transferor has caused this Certificate to be
executed by its officer thereunto duly authorized.
INTER-CITY PRODUCTS RECEIVABLES COMPANY,
L.P.
By: Inter-City Products Partner
Corporation, its general partner
By:
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1996-1 Certificates referred to in the
Pooling Agreement, as supplemented by the Supplement.
LASALLE NATIONAL BANK, as
Trustee
By:
Name:
Title:
Dated: ___________, 1996
PURCHASES AND REPAYMENTS
Principal
Amount of Outstanding
Amount Purchase Principal Stated
Purchased Repaid Balance Amount
--------- --------- ----------- ------
Distribution
Base LIBOR Period (if Base LIBOR Base LIBOR Reduction
Rate applicable) Rate Rate Net
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
EXHIBIT A-Part II
to the Series 1996-1 Supplement
FORM OF
CLASS B SERIES 1996-1 CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN
CONTRAVENTION OF THAT ACT. THIS CERTIFICATE WILL NOT BE ACCEPTED FOR
REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE SATISFACTORY
TO THE REGISTRAR AND TRANSFER AGENT THAT THE RESTRICTIONS ON TRANSFER SET
FORTH IN THE POOLING AGREEMENT HAVE BEEN COMPLIED WITH.
INTER-CITY PRODUCTS TRADE RECEIVABLES BACKED CERTIFICATES
CLASS B, SERIES 1996-1 CERTIFICATE
Maximum Principal Amount:
First Distribution Date: $_______________
THIS CERTIFIES THAT _________________ is the registered owner of
a nonassessable, fully-paid, fractional undivided interest in the Inter-
City Products Receivables Master Trust (the "Trust") that was created
pursuant to (a) the Pooling and Servicing Agreement, dated as of July 25,
1996 (as the same may be amended, supplemented or otherwise modified from
time to time, the "Pooling Agreement"), among Inter-City Products
Receivables Company, L.P., a Tennessee limited partnership,
("Transferor"), INTER-CITY PRODUCTS CORPORATION (USA), a Delaware
corporation, ("Servicer"), and LASALLE NATIONAL BANK, as trustee (together
with its successors and assigns in such capacity, "Trustee") and (b) the
Supplement dated as of the same date relating to the Series 1996-1
Certificates (the "Supplement"). This Certificate is one of the duly
authorized Series 1996-1 Certificates designated and issued under the
Pooling Agreement and the Supplement. Except as otherwise defined herein,
capitalized terms have the meanings that Appendix A to the Pooling
Agreement assigns to them. This Certificate is subject to the terms,
provisions and conditions of, and is entitled to the benefits afforded by,
the Pooling Agreement and the Supplement, to which terms, provisions and
conditions the Holder of this Certificate by virtue of the acceptance
hereof assents and by which the Holder is bound.
Unless the certificate of authentication hereon shall have been
executed by or on behalf of Trustee by the manual signature of a duly
authorized signatory, this Certificate shall not entitle the Holder hereof
to any benefit under the Transaction Documents or be valid for any
purpose.
This Certificate does not represent a recourse obligation of, or
an interest in, Transferor, any Seller, Servicer, Trustee or any Affiliate
of any of them. This Certificate is limited in right of payment to the
Transferred Assets.
By its acceptance of this Certificate, each Holder hereof (a)
acknowledges that it is the intent of Transferor, and agrees that it is
the intent of the Holder that, for purposes of Federal, applicable state
and local income and franchise and other taxes measured by or imposed on
income, the Class B, Series 1996-1 Certificates (including this
Certificate) will be treated as evidence of indebtedness secured by the
Transferred Assets and the Trust will not be characterized as an
association taxable as a corporation or a publicly-traded partnership, (b)
agrees that the provisions of the Transaction Documents shall be construed
to further that intent, and (c) agrees to treat this Certificate for
purposes of Federal, applicable state and local income and franchise and
other taxes measured by or imposed on income as indebtedness.
This Certificate shall be construed in accordance with the laws
of the State of New York, without regard to its conflict of laws
principles, and all obligations, rights and remedies under or arising in
connection with this Certificate shall be determined in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, Transferor has caused this Certificate to be
executed by its officer thereunto duly authorized.
INTER-CITY PRODUCTS RECEIVABLES
COMPANY, L.P.
By: Inter-City Products Partner
Corporation, its general partner
By: ____________________________________
Name:
________________________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1996-1 Certificates referred to in the
Pooling Agreement, as supplemented by the Supplement.
LASALLE NATIONAL BANK, as Trustee
By:__________________________________
Name:
______________________________
Title:
Dated: ___________, 1996
EXHIBIT B OMITTED AS NOT MATERIAL
EXHIBIT C OMITTED AS NOT MATERIAL
EXHIBIT D
Inter-City Products Corporation (USA)
EXHIBIT D
to Series 1996-1 Supplement
GUARANTY
THIS GUARANTY, dated as of July 25,1996 (this "Guaranty"), is
issued by INTER-CITY PRODUCTS CORPORATION (USA), a Delaware corporation
("Guarantor"), for the benefit of INTER-CITY PRODUCTS RECEIVABLES COMPANY,
L.P., a Tennessee limited partnership ("Buyer"), and its successors and
assigns.
Guarantor agrees as follows:
SECTION 1. Definitions. Capitalized terms used in this Guaranty,
unless otherwise defined herein, shall have the meaning set forth in
Appendix A to the Pooling and Servicing Agreement, dated as of the date
hereof (as it may be amended, supplemented or otherwise modified from time
to time, the "Pooling Agreement" among Buyer, Guarantor, as Servicer, and
LASALLE NATIONAL BANK, as Trustee.
SECTION 2. Guaranty. FOR VALUE RECEIVED, Guarantor hereby
unconditionally guarantees the full and prompt payment when due, whether
by acceleration or otherwise, and at all times thereafter, and the full
and prompt performance, of each Seller's (each, a "Guaranteed Party")
obligations, howsoever created, arising or evidenced, whether direct or
indirect, primary or secondary, absolute or contingent, joint or several,
now or hereafter existing or due or to become due, which arise out of or
in connection with any Seller Transaction Document other than this
Guaranty (all of such obligations being hereinafter collectively called
the "Liabilities"); provided that nothing contained herein shall be
deemed to constitute credit recourse for the payment of any Receivable;
provided further that to the extent (but solely to the extent) that
Guarantor's obligations under this Guaranty would breach, violate or
constitute an event of default under, that certain Indenture, dated as of
March 1, 1993, by and between Guarantor and United States Trust Company
of New York, as trustee (the "Indenture"), such obligations shall be
deemed void and unenforceable against Guarantor until such time as the
Indenture is terminated, at which time such obligations shall be. deemed
fully enforceable against Guarantor. Guarantor further agrees to pay all
expenses (including reasonable attorneys' fees and legal expenses) paid
or incurred by Buyer or its assigns in endeavoring to collect the
Liabilities, or any part thereof, and in enforcing this Guaranty.
SECTION 3. Continuing Guaranty. This Guaranty shall in all
respects be a continuing, absolute and unconditional guaranty, and shall
remain in full force and effect (notwithstanding, without limitation, that
at any time or from time to time all Liabilities may have been paid in
full), subject to discontinuance only upon actual receipt by Trustee of
written notice from Guarantor of the discontinuance hereof, provided,
however, that no such notice of discontinuance hereof shall affect or
impair any of the agreements and obligations of Guarantor hereunder with
respect to (i) any and all Liabilities existing prior to the time of
actual receipt of such notice by Trustee, any and all Liabilities created
or acquired thereafter pursuant to any commitments and agreements made by
Buyer under and with respect to the Purchase Agreement, and any and all
extensions or renewals thereof, and (ii) any and all expenses paid or
incurred by Buyer or its assigns in endeavoring to collect any of the
foregoing and in enforcing this Guaranty; and all of the agreements and
obligations under this Guaranty shall, notwithstanding any such notice of
discontinuance, remain fully in effect until all such Liabilities
(including any extensions or renewals of any thereof) and all such other
obligations and expenses finally shall have been paid in full.
SECTION 4. Rescission. Guarantor further agrees that, if at any
time all or any part of any payment theretofore applied by Buyer to any
of the Liabilities is or must be rescinded or returned by Buyer for any
reason whatsoever, such Liabilities shall, for the purposes of this
Guaranty, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence, notwithstanding such
application by Buyer, and this Guaranty shall continue to be effective or
be reinstated, as the case may be, as to such Liabilities, all as though
such application by Buyer had not been made.
SECTION 5. Certain Actions. Buyer may, from time to time at its
sole discretion and without notice to Guarantor, take any or all of the
following actions without affecting the obligations of Guarantor
hereunder: (a) retain or obtain a lien upon or a security interest in any
property to secure any of the Liabilities or any obligation hereunder; (b)
retain or obtain the primary or secondary obligation of any obligor or
obligors, in addition to Guarantor, with respect to any of the Liabilities
or any obligation hereunder; (c) extend or renew for one or more periods
(regardless of whether longer than the original period), alter or exchange
any of the Liabilities, or release or compromise any obligation of
Guarantor hereunder or any obligation of any nature of any other obligor
(including any Guaranteed Party) with respect to any of the Liabilities;
(d) release or fail to perfect its lien upon or security interest in, or
impair, surrender, release or permit any substitution or exchange for, all
or any part of any property securing any of the Liabilities or any
obligation hereunder, or extend or renew for one or more periods
(regardless of whether longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any obligor
with respect to any such property; and (e) resort to Guarantor for payment
of any of the Liabilities, regardless of whether Buyer shall have resorted
to any property securing any of the Liabilities or any obligation
hereunder or shall have proceeded against any other obligor primarily or
secondarily obligated with respect to any of the Liabilities.
SECTION 6. Subrogation. Any amounts received by Buyer from
whatsoever source on account of the Liabilities may be applied by it
toward the payment of such of the Liabilities, and in such order of
application, as Buyer or its assigns may from time to time elect. Until
such time as Buyer shall have received payment of the full amount of all
Liabilities and performance of all of Guarantor's obligations hereunder,
no payment made by or for the account of Guarantor pursuant to this
Guaranty shall entitle Guarantor by subrogation, indemnity or otherwise
to any payment by any Guaranteed Party or from or out of any property of
any Guaranteed Party and Guarantor shall not exercise any right or remedy
against any Guaranteed Party or any property of any Guaranteed Party by
reason of any performance by Guarantor of this Guaranty.
SECTION 7. Waiver. Guarantor hereby expressly waives: (a) notice
of Purchaser's acceptance of this Guaranty; (b) notice of the existence
or creation or non-payment of all or any of the Liabilities, (c)
presentment, demand, notice of dishonor, protest, and ' all other notices
whatsoever (provided that nothing contained in this clause (c) shall
affect any obligations to give notice or make
-2-
demand as set forth in the Purchase Agreement or the Pooling Agreement);
and (d) all diligence in collection or protection of or realization upon
the Liabilities or any thereof, any obligation hereunder, or any security
for or guaranty of any of the foregoing.
SECTION 8. Unconditional Nature of Guaranty. No delay on
Purchaser's part in the exercise of any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by Purchaser of any
right or remedy shall preclude other or @her exercise thereof or the
exercise of any other right or remedy; nor shall any modification or
waiver of any of the provisions of this Guaranty be binding upon Purchaser
except as expressly set forth in a writing duly signed by Purchaser. No
action or omission of Purchaser permitted hereunder shall in any way
affect or impair Purchaser's rights or Guarantor's obligations under this
Guaranty. For the purposes of this Guaranty, Liabilities shall include
all of each Guaranteed Party's obligations under the Transaction
Documents, notwithstanding any right or power of such Guaranteed Party or
anyone else to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or defense
shall affect or impair the obligations of Guarantor hereunder.
Guarantor's obligations under this Guaranty shall be absolute and
unconditional irrespective of any circumstance whatsoever which might
constitute a legal or equitable discharge or defense of Guarantor.
Guarantor hereby acknowledges that there are no conditions to the
effectiveness of this Guaranty.
SECTION 9. Information. Guarantor has and will continue to have
independent means of obtaining information concerning each Guaranteed
Party's affairs, financial condition and business. Purchaser shall not
have any duty or responsibility to provide Guarantor with any credit or
other information concerning any Guaranteed Party's affairs, financial
condition or business which may come into Purchaser's possession.
SECTION 10. Representations and Warranties. Guarantor represents
and warrants as follows:
(a) Organization and Good Standing. It has been duly
organized and is validly existing as a corporation in good
standing under the laws of its state of incorporation, with
corporate power and authority to own its properties and to
conduct its business as such properties are presently owned and
such business is presently conducted.
(b) Due Qualification. It is duly licensed or
qualified to do business as a foreign corporation in good
standing in each jurisdiction in which (i) the ownership or lease
of its property or the conduct of its business requires such
licensing or qualification, and (ii) the failure to be so
licensed or qualified reasonably could be expected to have a
Material Adverse Effect.
(c) Power and Authority, Due Authorization. It has
(i) all necessary power, authority and legal right to execute,
deliver and perform its obligations under this Guaranty and (ii)
duly authorized by all necessary corporate action such execution,
delivery and performance of this Guaranty.
(d) Binding Obligations. This Guaranty constitutes
the legal, valid and binding obligation of Guarantor, enforceable
in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the
-3-
enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
(e) No Violation. The execution, delivery and
performance of this Guaranty will not (i) conflict with, or result
in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under (A)
the certificate of incorporation or by-laws of Guarantor or (B) any
indenture, loan agreement, receivables purchase agreement, mortgage,
deed of trust, or other agreement or instrument to which Guarantor
is a party or by which it or any of its property is bound, (ii)
result in or require the creation or imposition of any Adverse Claim
(other than a Permitted Adverse Claim) upon any of its properties
pursuant to the terms of any such indenture, loan agreement,
receivables purchase agreement, mortgage, deed of trust, or other
agreement or instrument or (iii) violate any law or any order, rule
or regulation applicable to Guarantor of any court or of any federal,
state or foreign regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Guarantor or
any of its properties.
SECTION 11. Successors and Assigns. (a) This Guaranty shall be
binding upon Guarantor and upon Guarantor's successors and assigns and all
references herein to Guarantor or any Guaranteed Party shall be deemed to
include any successor or successors, whether immediate or remote, to such
Person. Guarantor shall not assign any of its obligations hereunder without
the prior written consent of Buyer.
(b) This Guaranty shall inure to the benefit of Purchaser and
its
successors and assigns. Guarantor acknowledges and agrees that Purchaser's
rights under this Guaranty are being assigned to Trustee, for the benefit of
the Certificateholders and the Purchasers, pursuant to the Pooling Agreement,
as supplemented from time to time (including by the Series 1996-1 Supplement
to the Pooling Agreement, of even date with this Guaranty).
SECTION 12. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES. Wherever possible each provision of
this Guaranty.. shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this Guaranty.
SECTION 13. Consent to Jurisdiction, Waiver of July Trial. Buyer
may enforce any claim arising out of this Guaranty in any state or federal
court having subject matter jurisdiction and located in New York City, New
York and with respect to any such claim, Guarantor hereby irrevocably submits
to the Jurisdiction of such courts. Guarantor irrevocably consents to the
service of process out of said courts by mailing a copy thereof, by
registered mail, postage prepaid, to Guarantor, and agrees that such service,
to the fullest extent permitted by law, (i) shall be deemed in every respect
effective service of process upon it in any suit, action or proceeding and
(ii) shall be taken and held to be valid personal service upon and personal
delivery to it. Nothing herein contained shall preclude Buyer from bringing
an action or proceeding in respect hereof in any other country, state or
place having jurisdiction over such action. Guarantor irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of
-4-
the venue of any such suit, action or proceeding brought in such a court
located in New York City, New York and any claim that any such suit, action
or proceeding brought in such court has been brought in an inconvenient
forum. GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR
UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY
IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY
RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY, AND AGREES THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
SECTION 14. Notices. All notices hereunder shall be given in the
manner set forth in Section 13.5 of the Pooling Agreement.
* * * * *
-5-
IN WITNESS WHEREOF, this Guaranty has been executed and delivered by
Guarantor duly authorized officer as of the date first written above.
INTER-CITY PRODUCTS CORPORATION
(USA)
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Address: ▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Telephone:
Facsimile:
APPENDIX X
to Certificate Purchase Agreement
Series 1996-1, Class A
INDEX OF ADDITIONAL DEFINED TERMS
Administration Fee. . . . . . . . . . . . . . . . . . . . . . . . . 3
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Agent Administration Fee. . . . . . . . . . . . . . . . . . . . . . 25
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Arrangement Fee . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Assignee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Breakage fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Class Percentage. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commitment Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Commitment Reduction Fee. . . . . . . . . . . . . . . . . . . . . . 4
Credit Exposure . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ICP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indemnitees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Initial Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . 5
LIBOR Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Minimum Usage Fee . . . . . . . . . . . . . . . . . . . . . . . . . 8
Non-Usage Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Pooling Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 5
Purchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Purchasers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Receivables Review. . . . . . . . . . . . . . . . . . . . . . . . . 22
Required Class A Purchasers . . . . . . . . . . . . . . . . . . . . 25
Required Purchasers . . . . . . . . . . . . . . . . . . . . . . . . 25
Series Percentage . . . . . . . . . . . . . . . . . . . . . . . . . 2
Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Stated Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Supplement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Transferee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Transferor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trust Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5