Exhibit 10.2
Execution Copy
HUNTSMAN MASTER TRUST
SECOND AMENDED AND RESTATED
SERIES 2000-1 SUPPLEMENT
Dated as of November 13,
2008
to
SECOND AMENDED AND RESTATED
POOLING AGREEMENT
Dated as of April 18,
2006
Among
HUNTSMAN RECEIVABLES FINANCE
LLC,
as
Company
HUNTSMAN (EUROPE)
BVBA,
as Master
Servicer
THE SEVERAL FINANCIAL
INSTITUTIONS PARTY HERETO AS FUNDING AGENTS,
THE SERIES 2000-1 CONDUIT
PURCHASERS PARTY HERETO,
THE SEVERAL FINANCIAL
INSTITUTIONS PARTY HERETO AS SERIES 2000-1 APA
BANKS,
J.P. MORGAN SECURITIES
LTD.,
as Book Runner
and Mandated Lead Arranger
JPMORGAN CHASE BANK,
N.A.,
as
Administrative Agent
and
BNY FINANCIAL SERVICES
PLC,
as Trustee
SIDLEY AUSTIN LLP
WOOLGATE EXCHANGE
25 BASINGHALL STREET
LONDON EC2V 5HA
TELEPHONE 020 7360 3600
FACSIMILE 020 7626 7937
REF: //30508-30240
TABLE OF CONTENTS
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Page No
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ARTICLE I DEFINITIONS
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2
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SECTION 1.01
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Definitions
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2
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SECTION 1.02
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Other Definitional Provisions
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2
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SECTION 1.03
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Calculations
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3
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ARTICLE II DESIGNATION OF SERIES
2000-1 VFC CERTIFICATES; PURCHASE AND SALE OF THE SERIES 2000-1 VFC
CERTIFICATES
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3
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SECTION 2.01
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Designation
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3
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SECTION 2.02
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The Series 2000-1 VFC Certificates and
Series 2000-1 Subordinated Interests
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4
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SECTION 2.03
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Purchases of Interests in the Series 2000-1
VFC Certificates and the Series 2000-1 Subordinated
Interests
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4
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SECTION 2.04
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Delivery
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6
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SECTION 2.05
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Procedure for Initial Issuance and for
Increasing the Series 2000-1 Invested Amount
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7
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SECTION 2.06
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Sale by a Series 2000-1 Conduit Purchaser
of its Series 2000-1 Purchaser Invested Amount to a
Series 2000-1 APA Bank
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12
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SECTION 2.07
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Procedure for Decreasing the Series 2000-1
Invested Amount
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15
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SECTION 2.08
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Reductions of the Series 2000-1
Commitments
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18
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SECTION 2.09
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Interest; Fees
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19
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SECTION 2.10
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Indemnification by Huntsman International and
the Company
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20
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SECTION 2.11
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Inability to Determine Eurocurrency
Rate
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21
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SECTION 2.12
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Series 2000-1 FX Hedging
Agreements
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22
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SECTION 2.13
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Notices, Reports, Directions by Master
Servicer
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22
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SECTION 2.14
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Optional Termination by the Company
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22
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SECTION 2.15
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Mandatory Reduction in Series 2000-1
Invested Amount
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26
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i
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SECTION 2.16
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Allocations Among VFC Purchaser
Groups
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26
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ARTICLE III ARTICLE III OF THE
AGREEMENT
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27
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SECTION 3.01
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27
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SECTION 3A.02
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Establishment of Series 2000-1
Accounts
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28
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SECTION 3A.03
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Daily Allocations
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30
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SECTION 3A.04
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Determination of Interest
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33
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SECTION 3A.05
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Determination of Series 2000-1 Monthly
Principal
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38
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SECTION 3A.06
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Applications
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40
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ARTICLE IV DISTRIBUTIONS AND REPORTS
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43
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SECTION 4A.01
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Distributions
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43
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SECTION 4A.02
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Daily Reports
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44
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SECTION 4A.03
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Reports and Notices
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44
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ARTICLE V ADDITIONAL SERIES 2000-1 EARLY
AMORTIZATION EVENTS
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45
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SECTION 5.01
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Additional Series 2000-1 Early Amortization
Events
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45
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ARTICLE VI SERVICING FEE
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48
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SECTION 6.01
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Servicing Compensation
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48
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ARTICLE VII CHANGE IN CIRCUMSTANCES
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49
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SECTION 7.01
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Illegality
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49
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SECTION 7.02
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Requirements of Law
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50
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SECTION 7.03
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Taxes
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52
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SECTION 7.04
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Indemnity
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56
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SECTION 7.05
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Assignment of Series 2000-1 Commitments
Under Certain Circumstances; Duty to Mitigate
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56
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SECTION 7.06
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Accounting Based Consolidation Event
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58
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SECTION 7.07
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Limitation
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59
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ARTICLE VIII COVENANTS; REPRESENTATIONS AND
WARRANTIES
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59
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SECTION 8.01
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Representations and Warranties of the Company
and the Master Servicer
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59
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ii
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SECTION 8.02
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Covenants of the Company, the Master Servicer
and Huntsman International
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60
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SECTION 8.03
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Negative Covenants of the Company and the Master
Servicer
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63
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SECTION 8.04
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Obligations Unaffected
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64
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SECTION 8.05
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Certain Provisions of the Servicing
Agreement
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64
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ARTICLE IX CONDITIONS PRECEDENT
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65
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SECTION 9.01
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Conditions Precedent to Effectiveness of
Supplement
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65
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ARTICLE X THE ADMINISTRATIVE AGENT AND FUNDING
AGENTS
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71
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SECTION 10.01
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Appointment
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71
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SECTION 10.02
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Delegation of Duties
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72
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SECTION 10.03
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Exculpatory Provisions
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72
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SECTION 10.04
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Reliance by Administrative Agent and Funding
Agents
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72
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SECTION 10.05
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Notice of Master Servicer Default or
Series 2000-1 Early Amortization Event or Potential
Series 2000-1 Early Amortization Event
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73
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SECTION 10.06
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Non Reliance on Administrative Agent or Funding
Agents and Other Series 2000-1 Purchasers
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74
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SECTION 10.07
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Indemnification
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74
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SECTION 10.08
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Administrative Funding and Funding Agent in Its
Individual Capacity
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75
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SECTION 10.09
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Successor Administrative Agent and Funding
Agent
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76
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ARTICLE XI MISCELLANEOUS
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76
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SECTION 11.01
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Ratification of Agreement;
Effectiveness
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76
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SECTION 11.02
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Governing Law
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77
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SECTION 11.03
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Further Assurances
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77
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SECTION 11.04
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Payments
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77
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SECTION 11.05
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Costs and Expenses
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78
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SECTION 11.06
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No Waiver; Cumulative Remedies
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78
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SECTION 11.07
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Amendments
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78
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iii
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SECTION 11.08
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Severability
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80
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SECTION 11.09
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Notices
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80
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SECTION 11.10
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Successors and Assigns
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81
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SECTION 11.11
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Counterparts
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86
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SECTION 11.12
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Adjustments; Setoff
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86
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SECTION 11.13
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Limitation of Payments by the Company
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87
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SECTION 11.14
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No Bankruptcy Petition; No Recourse
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87
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SECTION 11.15
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Limitation on Addition of Approved Originators,
Approved Currency, Approved Obligors and a Successor Master
Servicer; Mergers and Consolidations
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88
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SECTION 11.16
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Subordinated Loan
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89
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SECTION 11.17
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Limited Recourse
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92
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ARTICLE XII FINAL DISTRIBUTIONS
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94
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SECTION 12.01
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Certain Distributions
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94
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ARTICLE XIII ADMINISTRATIVE AGENT
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94
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SECTION 13.01
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Administrative Agent
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94
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SCHEDULE I Series 2000-1
Commitments
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6
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SCHEDULE II Series 2000-1 Concentration
Accounts
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SCHEDULE III Series 2000-1
Definitions
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7
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SCHEDULE IV Notices
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38
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EXHIBIT A-1 Form of Series 2000-1 U.S.
Dollar VFC Certificate
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43
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EXHIBIT A-2 Form of Series 2000-1 Euro VFC
Certificate
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EXHIBIT A-3 Form of Series 2000-1 Sterling VFC
Certificate
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EXHIBIT B Form of Series 2000-1 Commitment
Transfer Supplement
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EXHIBIT C Form of Administrative
Questionnaire
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EXHIBIT D Form of Daily Report
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EXHIBIT E Form of Monthly Settlement
Report
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EXHIBIT F Form of Increase/Decrease
Notice
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iv
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EXHIBIT G Form of Confidentiality
Agreement
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EXHIBIT H Form of Notice of Receipt of Series
2000-1 Pay-Off Amounts
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EXHIBIT I Form of Release Agreement
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v
This Second Amended and Restated Series 2000-1
SUPPLEMENT dated as of November 13, 2008 (as the same may be
amended, supplemented, restated or otherwise modified from time to
time, this “ Supplement ”), is made among
Huntsman Receivables Finance LLC (the “ Company
”), a Delaware limited liability company, Huntsman (Europe)
BVBA (the “ Master Servicer ”), a company
organized under the laws of Belgium, the conduit purchasers party
hereto from time to time as Series 2000-1 Conduit Purchasers (the
“ Series 2000-1 Conduit Purchasers ”), the
several financial institutions party hereto from time to time as
Series 2000-1 APA banks (the “ Series 2000-1 APA Banks
”), the several financial institutions party hereto from time
to time as funding agents (the “ Funding Agents
”), J.P. Morgan Securities Ltd., as Book Runner and Mandated
Lead Arranger, JPMorgan Chase Bank, N.A., as administrative agent
(the “ Administrative Agent ”) and BNY Financial
Services plc, as trustee (the “ Trustee
”).
W I T N E S S E T H :
WHEREAS, the Company, the Master Servicer and
the Trustee have entered into the Pooling Agreement, dated as of
December 21, 2000, as amended and restated on June 26, 2001 and
April 18, 2006 (as in effect on the date hereof and as the same may
be amended, supplemented, restated or otherwise modified from time
to time, the “ Pooling Agreement ”);
WHEREAS, the Pooling Agreement provides, among
other things, that the Company, the Master Servicer and the Trustee
may at any time and from time to time enter into supplements to the
Pooling Agreement for the purpose of authorizing the issuance, by
the Company, of one or more Series of Investor Certificates on
behalf of the Trust, for execution and redelivery to the Trustee
for authentication;
WHEREAS, pursuant to the Series 2000-1
Supplement dated as of December 21, 2000, as the same may
heretofore have been amended, supplemented, restated or otherwise
modified from time to time, (the “ Existing Series 2000-1
Supplement ”), the Company, the Master Servicer, the
Trustee, the “Series 2000-1 Conduit Purchasers” party
thereto, and the “Series 2000-1 APA Banks” party
thereto, and the other parties to the Existing Series 2000-1
Supplement, supplemented the Pooling Agreement to provide among
other matters for the issuance of a Variable Funding
Certificate;
WHEREAS, the Series 2000-1 Conduit Purchasers
and the 2000-1 APA Banks are the Investor Certificateholders and
hereby represent and warrant that they are the holders of the
entire principal amount of Investor Certificates issued pursuant to
the Series 2000-1 Supplement; and
WHEREAS the Company, the Master Servicer, the
Trustee, the Series 2000-1 Conduit Purchasers, the Series 2000-1
APA Banks and the Funding Agents wish to amend and restate the
Existing Series 2000-1 Supplement on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby expressly acknowledged, the parties hereto agree as
follows:
1
ARTICLE I
DEFINITIONS
SECTION 1.01
Definitions.
Capitalized terms used herein shall unless
otherwise defined or referenced herein, have the meanings assigned
to such terms in Annex X (as amended, supplemented, restated
or otherwise modified from time to time) to the Pooling Agreement
or Schedule III to this Supplement.
SECTION 1.02
Other Definitional
Provisions.
(a)
All terms defined
or incorporated by reference in this Supplement shall have such
defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined
therein.
(b)
As used herein
and in any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms not defined herein or
incorporated by reference herein, and accounting terms partly
defined herein or incorporated by reference herein to the extent
not defined, shall have the respective meanings given to them under
GAAP. To the extent that the definitions of accounting terms
herein or incorporated by reference herein are inconsistent with
the meanings of such terms under GAAP, the definitions contained
herein or incorporated by reference herein shall
control.
(c)
The words
“ hereof
”,
“ herein
” and
“ hereunder
” and
words of similar import when used in this Supplement shall refer to
this Supplement as a whole and not to any particular provision of
this Supplement; and Section, Schedule, Exhibit and Appendix
references contained in this Supplement are references to Sections,
Schedules, Exhibits and Appendices in or to this Supplement unless
otherwise specified.
(d)
The definitions
contained herein or incorporated by reference herein are applicable
to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such
terms.
(e)
Any reference
herein or in any other Transaction Document to a provision of the
Bankruptcy Code, Code, ERISA, 1940 Act or the UCC shall be deemed a
reference to any successor provision thereto.
(f)
Any reference
herein to a Schedule, Exhibit or Appendix to this Supplement shall
be deemed to be a reference to such Schedule, Exhibit or Appendix
as it may be amended, restated, supplemented or otherwise modified
from time to time to the extent that such Schedule, Exhibit or
Appendix may be amended, restated, supplemented or otherwise
modified (or any term or provision of any Transaction Document may
be amended that would have the effect of amending, restating,
supplementing or otherwise modifying information contained in such
Schedule, Exhibit or Appendix) in compliance with the terms of the
Transaction Documents.
2
(g)
Any reference in
this Supplement to any representation, warranty or covenant
“deemed” to have been made is intended to encompass
only representations, warranties or covenants that are expressly
stated to be repeated on or as of dates following the execution and
delivery of this Supplement, and no such reference shall be
interpreted as a reference to any implicit, inferred, tacit or
otherwise unexpressed representation, warranty or
covenant.
(h)
The words
“ include
”,
“ includes
” or
“ including
” shall be
interpreted as if followed, in each case, by the phrase
“without limitation”.
(i)
References to the
Series 2000-1 Supplement in any other document or agreement
inclusive of the Transaction Documents shall be deemed to be
references to this Supplement as amended and restated on the date
hereof and as amended, restated, supplemented or otherwise modified
from time to time and all assignments hereof.
(j)
References to any
other Transaction Document or any other document or agreement in
this Supplement shall be deemed to be references to any such
document or agreement as amended, restated, supplemented or
otherwise modified from time to time.
SECTION 1.03
Calculations.
All calculations under the Pooling Agreement and
this Supplement shall be in U.S. Dollars so that for purposes of
calculating or determining any Invested Amount, any Invested
Percentage, Series 2000-1 Invested Amount, Series 2000-1 Purchaser
Invested Amount, the Aggregate Receivables Amount, the Series
2000-1 Allocated Receivables Amount, any Target Receivables Amount,
the Series 2000-1 Target Receivables Amount, the Series 2000-1
Maximum Invested Amount and the Series 2000-1 Percentage Factor and
any term or amount incorporated into any of the foregoing
definitions or calculations, amounts denominated in a currency
other than U.S. Dollars shall be converted on a pro forma
basis into U.S. Dollars at the Spot Rate as in effect on the date
of the relevant calculation or determination.
ARTICLE II
DESIGNATION OF SERIES 2000-1 VFC CERTIFICATES;
PURCHASE AND SALE
OF THE SERIES 2000-1 VFC CERTIFICATES
SECTION 2.01
Designation.
The Investor Certificates and interests created
and authorized pursuant to the Pooling Agreement and this
Supplement shall be designated as (i) the “ Series 2000-1
U.S. Dollar VFC Certificates ”, the “ Series
2000-1 Euro VFC Certificates ” and the “ Series
2000-1 Sterling VFC Certificates ” (together, the “
Series 2000-1 VFC Certificates ”) and (ii)
subordinated interests as described in Section 2.02(b)
.
3
SECTION 2.02
The Series 2000-1 VFC Certificates
and Series 2000-1 Subordinated Interests.
(a)
The Series 2000-1
VFC Certificates will represent fractional undivided interests in
the Participation and security interest granted by the Company to
the Trustee for the benefit of the Investor Certificateholders
under the Pooling Agreement, consisting of the right of the Series
2000-1 VFC Certificateholders to receive the distributions
specified herein out of (i) the Series 2000-1 Invested Percentage
(expressed as a decimal) of Participation Amounts with respect to
Collections received with respect to the Receivables and all other
funds on deposit in the Collection Accounts and (ii) to the extent
such interests appear herein, all other funds on deposit in the
Series 2000-1 Accounts (collectively, the “
Series 2000-1 VFC Certificateholder
Interests ”).
(b)
The Company shall
be entitled to receive, in consideration of the grant of the
Participation and security interest under the Pooling Agreement,
the payments specified herein from the funds on deposit in the
Series 2000-1 Accounts and any subaccounts thereof, in each case to
the extent not required to be distributed to or for the benefit of
the Series 2000-1 VFC Certificateholders (the “
Series 2000-1 Subordinated
Interests ”). The Series
2000-1 VFC Certificateholders hereby authorize the Trustee to make
the payments referred to in the preceding sentence out of the funds
on deposit in the Series 2000-1 Accounts by way of consideration
payable to the Company as referred to above. The Exchangeable
Company Interests, the Series 2000-1 Subordinated Interests and any
other Subordinated Company Interests outstanding from time to time
shall represent the exclusive beneficial ownership interest owned
by the Company in the Participation Assets.
(c)
The Series 2000-1
U.S. Dollar VFC Certificates, the Series 2000-1 Euro VFC
Certificates and the Series 2000-1 Sterling VFC Certificates shall
be substantially in the form of Exhibits A-1 , A-2 and A-3 , respectively, and shall,
upon issue, be executed by the Trustee (on behalf of the Trust and
without the Trustee incurring any personal liability in respect of
the Investor Certificates) and will be authenticated and
redelivered by the Trustee as provided in Section 2.04 of this Supplement and
Section 5.02 of the Pooling
Agreement. The Series 2000-1 U.S. Dollar VFC Certificates,
the Series 2000-1 Euro VFC Certificates and the Series 2000-1
Sterling VFC Certificates shall be issued in the form of definitive
certificates, each registered in the name of the Funding Agent for
the applicable VFC Purchaser Group for the benefit of the Series
2000-1 Purchasers for that VFC Purchaser Group, from time to time,
as the holder thereof. The Series 2000-1 Subordinated Interests,
the Exchangeable Company Interest and any other Subordinated
Company Interests outstanding from time to time will be
uncertificated.
SECTION 2.03
Purchases of Interests in the Series
2000-1 VFC Certificates and the Series 2000-1 Subordinated
Interests.
(a)
Initial Purchase . Subject to the terms
and conditions of this Supplement, each of the Existing Series
2000-1 VFC Certificateholders agrees to surrender its Existing
Series 2000-1 VFC Certificate on the Series 2000-1 Issuance Date in
exchange for the issuance of new Series 2000-1 VFC Certificates and
for the payments provided in the payment instruction letter among
the Funding Agents, the Company and the Master Servicer entered
into on or about the
4
date
hereof. Subject to the terms and conditions of this
Supplement, including delivery of notice (if any) required
by Section 2.05
,
(i)
on the Series
2000-1 Issuance Date, (A) each Series 2000-1 Conduit Purchaser may,
in its sole discretion, purchase Series 2000-1 VFC Certificate(s)
denominated in the currency of each VFC Purchaser Currency Group to
which it belongs, in an amount equal to its respective VFC Currency
Pro Rata Share of the Series 2000-1 Initial Invested Amount, or (B)
if any Series 2000-1 Conduit Purchaser shall have notified the
Funding Agent for such Series 2000-1 Conduit Purchaser’s VFC
Purchaser Group that it has elected not to purchase a Series 2000-1
VFC Certificate on the Series 2000-1 Issuance Date, each Series
2000-1 APA Bank for the applicable VFC Purchaser Group hereby
severally agrees to purchase on the Series 2000-1 Issuance Date
such Series 2000-1 VFC Certificate Interest, which Series 2000-1
VFC Certificate Interest of each Series 2000-1 APA Bank will be
reflected on the schedule attached as Schedule I to the Series 2000-1 VFC
Certificate, in an amount equal to such Series 2000-1 APA
Bank’s Series 2000-1 Currency Commitment Percentage of the
Series 2000-1 Initial Invested Amount; and
(ii)
thereafter, (A)
if any Series 2000-1 Conduit Purchaser shall have purchased a
Series 2000-1 VFC Certificate on the Series 2000-1 Issuance Date,
such Series 2000-1 Conduit Purchaser may, in its sole discretion,
maintain such Series 2000-1 VFC Certificate, subject to increase or
decrease during the Series 2000-1 Revolving Period, in accordance
with the provisions of this Supplement and (B) if the Series 2000-1
APA Banks with respect to a VFC Purchaser Group shall have
purchased a Series 2000-1 VFC Certificate Interest on the Series
2000-1 Issuance Date or, in any case, on or after the Series 2000-1
Purchase Date, each Series 2000-1 APA Bank with respect to such VFC
Purchaser Group hereby severally agrees to maintain its Series
2000-1 VFC Certificate Interest, subject to increase or decrease
during the Series 2000-1 Revolving Period, in accordance with the
provisions of this Supplement.
The Company hereby agrees to
maintain ownership of the Series 2000-1 Subordinated Interests,
subject to increase or decrease during the Series 2000-1 Revolving
Period, in accordance with Section 2.05 or Section
2.07 (as applicable). Payments by the Series 2000-1
Conduit Purchasers in respect of the Series 2000-1 VFC Certificates
or the Series 2000-1 APA Banks in respect of the Series 2000-1 VFC
Certificate Interests shall be made in immediately available funds
on the Series 2000-1 Issuance Date to the Trust.
(b)
Series 2000-1 APA Banks
Commitment. Subject to the terms and
conditions of this Supplement, each Series 2000-1 APA Bank shall be
deemed to have severally agreed, by its acceptance of its Series
2000-1 VFC Certificate Interest, to maintain its Series 2000-1 VFC
Certificate Interest, subject to increase or decrease during the
Series 2000-1 Revolving Period, in accordance with the provisions
of this Supplement and the Series 2000-1 Asset Purchase Agreement
with respect to its VFC Purchaser Group.
5
(c)
Maximum Series 2000-1 Purchaser
Invested Amount . Notwithstanding
anything to the contrary contained in this Supplement, at no time
shall the aggregate of the Series 2000-1 Purchaser U.S. Dollar
Invested Amount , the Series 2000-1 Purchaser
Euro Invested Amount and the Series 2000-1 Purchaser Sterling
Invested Amount (calculated without regard to clauses (c)(iv) and (v) of the applicable definition
thereof but with regard to clause (d) of the definition of Series
2000-1 Purchaser Euro Invested Amount and Series 2000-1 Purchaser
Sterling Invested Amount) of:
(i)
any Series 2000-1
Conduit Purchaser exceed an amount equal to the aggregate of the
Series 2000-1 Adjusted Commitments at such time of the Series
2000-1 APA Banks in such Series 2000-1 Conduit Purchaser’s
VFC Purchaser Group; or
(ii)
any Series 2000-1
APA Bank exceed an amount equal to such Series 2000-1 APA
Bank’s Series 2000-1 Adjusted Commitment at such
time.
(d)
Allocations Among Currency of
Certificates . All fundings with
respect to (i) the Series 2000-1 Euro VFC Certificate and Series
2000-1 Purchaser Euro Invested Amounts shall be allocated solely to
the Euro VFC Purchaser Groups, and (ii) the Series 2000-1 Sterling
VFC Certificate and Series 2000-1 Purchaser Sterling Invested
Amounts shall be allocated solely to the Sterling VFC Purchaser
Groups, respectively. So long as any Series 2000-1 Euro
Investment Amount or Series 2000-1 Sterling Investment Amount is
outstanding and there is a Dollar Only VFC Purchaser
Group:
(i)
all fundings with
respect to the Series 2000-1 U.S. Dollar VFC Certificate and Series
2000-1 Purchaser U.S. Dollar Invested Amounts shall be allocated
first to each Dollar Only VFC Purchaser Group to the extent
necessary for each Dollar Only VFC Purchaser Group to be able to
fund its respective VFC Pro Rata Share of the Series 2000-1
Invested Amount (up to and limited to the extent of the amount of
such Dollar funding); and
(ii)
to the extent
that after giving effect to clause (i) above: (A) the VFC Purchaser
Invested Amount with respect to each VFC Purchaser Group is in
accordance with its respective VFC Pro Rata Share, then the
remaining amount of the requested Dollar funding shall be allocated
among the VFC Purchaser Groups in accordance with their respective
VFC Pro Rata Shares, and (B) the allocation of Dollar fundings
pursuant to clause (i)
above is not
sufficient to result in the VFC Purchaser Invested Amount with
respect to each VFC Purchaser Group to be in accordance with its
respective VFC Pro Rata Share, then the Series 2000-1 VFC
Certificates and Series 2000-1 Purchaser Invested Amounts shall be
funded on a non pro rata basis, in each case subject to the
limits set forth in Section
2.03(c) .
SECTION 2.04
Delivery.
On the Series 2000-1 Issuance Date, the Master
Servicer shall direct the Trustee in writing pursuant to Section
5.02 of the Pooling Agreement to execute and duly authenticate,
and the
6
Trustee, upon receiving such direction, shall so
authenticate each Series 2000-1 VFC Certificate in the name of the
Funding Agent for the applicable VFC Purchaser Group and deliver
such Series 2000-1 VFC Certificate to the Funding Agent for the
benefit of the Series 2000-1 Conduit Purchaser or the Series 2000-1
APA Banks, as the case may be, for that VFC Purchaser Group, in
accordance with such written directions. The Series 2000-1
U.S. Dollar VFC Certificates shall be issued in an initial amount
of $1,000,000 and in integral multiples of $100,000 in excess
thereof. The Series 2000-1 Euro VFC Certificate shall be
issued in an initial amount of €1,000,000 and in integral
multiples of €100,000 in excess thereof. The Series
2000-1 Sterling VFC Certificate shall be issued in an initial
amount of £1,000,000 and in integral multiples of
£100,000 in excess thereof. The Trustee shall mark on
its books the actual Series 2000-1 Invested Amount and Series
2000-1 Subordinated Interest Amount outstanding on any date of
determination, which, absent manifest error, shall constitute
prima facie evidence of the outstanding Series 2000-1
Invested Amount and Series 2000-1 Subordinated Interest Amount from
time to time. The Trustee shall remit to the Company by wire
transfer to the account designated by the Company the purchase
price received from each Series 2000-1 Purchaser.
SECTION 2.05
Procedure for Initial Issuance and
for Increasing the Series 2000-1 Invested Amount.
(a)
Subject to
Section 2.05(c) , (I) on the Series 2000-1
Issuance Date, each Series 2000-1 Conduit Purchaser may agree, in
its sole discretion, to purchase a Series 2000-1 VFC Certificate,
and each Series 2000-1 APA Bank hereby agrees to purchase a Series
2000-1 VFC Certificate in accordance with Section 2.03 and (II) on any Business Day
during the Series 2000-1 Commitment Period, each Series 2000-1
Conduit Purchaser may agree, in its sole discretion, and each
Series 2000-1 APA Bank hereby agrees, that the Series 2000-1
Invested Amount may be increased by increasing each Series 2000-1
Purchaser’s Series 2000-1 Purchaser U.S. Dollar Invested
Amount, Series 2000-1 Purchaser Euro Invested Amount or Series
2000-1 Purchaser Sterling Invested Amount (each, a “
Series 2000-1 Increase
”), upon
the request of the Master Servicer (each date on which an increase
in the Series 2000-1 U.S. Dollar Invested Amount, Series 2000-1
Euro Invested Amount or Series 2000-1 Sterling Invested Amount
occurs hereunder being herein referred to as the “
Series 2000-1 Increase Date
”
applicable to such Series 2000-1 Increase); provided , however , that the Master Servicer
shall have given to each Funding Agent (with a copy to the
Administrative Agent and the Trustee) irrevocable written notice
(effective upon receipt), substantially in the form of
Exhibit F hereto, of such request no
later than:
(i)
7:00 a.m., New
York City time, three (3) Business Days (or, if such notice relates
to the Series 2000-1 Purchaser U.S. Dollar Invested Amount, two (2)
Business Days) prior to the Series 2000-1 Issuance Date or such
Series 2000-1 Increase Date, as the case may be, in the case of any
Series 2000-1 Increase Date occurring prior to the occurrence of a
Conduit Purchaser Termination Event with respect to a relevant VFC
Purchaser Group if all or a portion of the Series 2000-1 Initial
Invested Amount or Series 2000-1 Increase Amount is to be allocated
to a Series 2000-1 CP Tranche upon notice given pursuant to
Section 3A.04(c)(i)
; or
7
(ii)
(x) 7:00 a.m.,
New York City time, on the Series 2000-1 Issuance Date or such
Series 2000-1 Increase Date, as the case may be, if, after the
occurrence of a Conduit Purchaser Termination Event with respect to
a relevant VFC Purchaser Group or any Series 2000-1 Purchase Date
with respect to a relevant VFC Purchaser Group, the Series 2000-1
Initial Invested Amount or Series 2000-1 Increase Amount is to be
priced with respect to a relevant VFC Purchaser Group solely with
reference to the ABR, or (y) 7:00 a.m., New York City time, three
(3) Business Days prior to the Series 2000-1 Issuance Date or such
Series 2000-1 Increase Date, as the case may be, if, after the
occurrence of a Conduit Purchaser Termination Event with respect to
a relevant VFC Purchaser Group or any Series 2000-1 Purchase Date
with respect to a relevant VFC Purchaser Group, all or a portion of
the Series 2000-1 Initial Invested Amount or Series 2000-1 Increase
Amount is to be allocated with respect to a relevant VFC Purchaser
Group to a Series 2000-1 Eurocurrency Tranche upon notice given
pursuant to Section
3A.04(c)(ii) .
Each notice shall state (x) the
Series 2000-1 Issuance Date or the Series 2000-1 Increase Date, as
the case may be, (y) the Series 2000-1 Initial U.S. Dollar Invested
Amount, the Series 2000-1 Initial Euro Invested Amount, the Series
2000-1 Initial Sterling Invested Amount or the proposed amount and
currency of such Series 2000-1 Increase with respect to each Class
of Series 2000-1 VFC Certificates (the “ Series 2000-1
Increase Amount ”), as the case may be, and (z) on and
after the occurrence of a Conduit Purchaser Termination Event with
respect to a relevant VFC Purchaser Group or any Series 2000-1
Purchase Date with respect to a relevant VFC Purchaser Group, the
portions of the Series 2000-1 Initial U.S. Dollar Invested Amount,
the Series 2000-1 Initial Euro Invested Amount and the Series
2000-1 Initial Sterling Invested Amount or the Series 2000-1
Increase Amount in respect thereof (as the case may be) that will
be allocated to a Series 2000-1 Eurocurrency Tranche and the Series
2000-1 Floating Tranche with respect to a relevant VFC Purchaser
Group. Each Series 2000-1 Increase in a specified currency
shall be allocated between the respective VFC Purchaser Groups in
the VFC Purchaser Currency Group of the currency of the relevant
Series 2000-1 Increase in accordance with their respective VFC
Currency Pro Rata Share with respect to such currency and the
requirements of Section 2.05(c)(ii)(C) . No Series
2000-1 Purchaser shall be obligated to fund any such Series 2000-1
Increase, unless concurrently with any such Series 2000-1 Increase
in the Series 2000-1 Invested Amount, the Series 2000-1
Subordinated Interest Amount shall be increased by an amount, if
any (the “ Series 2000-1 Subordinated Interest Increase
Amount ”), such that after giving effect to such
increase, the Series 2000-1 Adjusted Invested Amount plus
the Series 2000-1 Subordinated Interest Amount equals the Series
2000-1 Target Receivables Amount.
(b)
If a Series
2000-1 Conduit Purchaser elects not to fund any portion of its VFC
Currency Pro Rata Share of a requested Series 2000-1 Increase, such
Series 2000-1 Conduit Purchaser shall notify the related Funding
Agent thereof and deliver a Sale Notice in accordance with
Section 2.06 and each related Series
2000-1 APA Bank shall purchase its Series 2000-1 Currency
Commitment
8
Percentage of
such Series 2000-1 Conduit Purchaser’s Series 2000-1
Purchaser U.S. Dollar Invested Amount, Series 2000-1 Purchaser Euro
Invested Amount and/or Series 2000-1 Purchaser Sterling Invested
Amount in accordance with Section 2.06 and fund such Series 2000-1
Increase in an amount equal to its Series 2000-1 Currency
Commitment Percentage of such Series 2000-1 Increase;
provided , however , that a Series 2000-1 APA
Bank shall not be obligated to fund any portion of a Series 2000-1
Increase that would cause the aggregate of its Series 2000-1
Purchaser U.S. Dollar Invested Amount, Series 2000-1 Purchaser Euro
Invested Amount and Series 2000-1 Purchaser Sterling Invested
Amount to exceed an amount equal to its Series 2000-1 Adjusted
Commitment at such time.
(c)
The Series 2000-1
Purchasers shall not be required to make the initial purchase of
Series 2000-1 VFC Certificate Interests on the Series 2000-1
Issuance Date or to increase their respective Series 2000-1
Purchaser U.S. Dollar Invested Amount, Series 2000-1 Purchaser Euro
Invested Amount or Series 2000-1 Purchaser Sterling Invested Amount
on any Series 2000-1 Increase Date unless:
(i)
(1) in respect of
the Series 2000-1 U.S. Dollar VFC Certificates, the related
aggregate Series 2000-1 Initial U.S. Dollar Invested Amount or
Series 2000-1 Increase Amount in respect thereof is equal to
$1,000,000 or an integral multiple of $100,000 in excess thereof,
(2) in respect of the Series 2000-1 Euro VFC Certificates the
related aggregate Series 2000-1 Initial Euro Invested Amount or
Series 2000-1 Increase Amount in respect thereof is equal of
€1,000,000 or an integral multiple of €100,000 in
excess thereof and (3) in respect of the Series 2000-1 Sterling VFC
Certificates the related aggregate Series 2000-1 Initial Sterling
Invested Amount or Series 2000-1 Increase Amount in respect thereof
is equal of £1,000,000 or an integral multiple of
£100,000 in excess thereof;
(ii)
after giving
effect to the Series 2000-1 Initial Invested Amount or Series
2000-1 Increase Amount,
(A)
the Series 2000-1 Invested Amount
(calculated without regard to clauses (c)(iv) and (v) of the definitions of Series 2000-1 Purchaser
U.S. Dollar Invested Amount, Series 2000-1 Purchaser Euro Invested
Amount and Series 2000-1 Purchaser Sterling Invested Amount but
with regard to clause (d) of the definition of Series 2000-1 Purchaser
Euro Invested Amount and Series 2000-1 Purchaser Sterling Invested
Amount) would not exceed the Series 2000-1 Maximum Invested Amount
on the Series 2000-1 Issuance Date or such Series 2000-1 Increase
Date, as the case may be,
(B)
the Series 2000-1 Allocated
Receivables Amount would not be less than the Series 2000-1 Target
Receivables Amount on the Series 2000-1 Issuance Date or such
Series 2000-1 Increase Date, as the case may be, as set forth in
the Daily Report delivered on such date, and
9
(C)
with respect to any VFC Purchaser
Group, the aggregate of the Series 2000-1 Purchaser U.S. Dollar
Invested Amount, the Series 2000-1 Purchaser Euro Invested Amount
and the Series 2000-1 Purchaser Sterling Invested Amount
(calculated without regard to clauses (c)(iv) and (v) of the definition of Series 2000-1 Purchaser
U.S. Dollar Invested Amount, Series 2000-1 Purchaser Euro Invested
Amount and Series 2000-1 Purchaser Sterling Invested Amount,
respectively but with regard to clause (d) of the definition of Series 2000-1 Purchaser
Euro Invested Amount and Series 2000-1 Purchaser Sterling Invested
Amount) with respect to such VFC Purchaser Group would not exceed
its VFC Pro Rata Share of the Series 2000-1 U.S. Dollar Invested
Amount, Series 2000-1 Euro Invested Amount and Series 2000-1
Sterling Invested Amount on the Series 2000-1 Issuance Date or such
Series 2000-1 Increase Date,
(iii)
no Series 2000-1
Early Amortization Event or Potential Series 2000-1 Early
Amortization Event under the Pooling Agreement or this Supplement
shall have occurred and be continuing;
(iv)
in the case of
any funding by a Series 2000-1 Conduit Purchaser, such Series
2000-1 Conduit Purchaser shall have consented to such funding in
its sole discretion and no Conduit Purchaser Termination Event
shall have occurred and be continuing with respect to such Series
2000-1 Conduit Purchaser;
(v)
all of the
representations and warranties made by each of the Company, the
Master Servicer and each Originator in each Transaction Document to
which it is a party are true and correct in all material respects
on and as of the Series 2000-1 Issuance Date or such Series 2000-1
Increase Date, as the case may be, as if made on and as of such
date (except to the extent such representations and warranties are
expressly made as of another date); and
(vi)
in the case of
the initial purchase of Series 2000-1 VFC Certificate Interests on
(A) November 18, 2008, HSBC shall have received a duly executed
pay-off letter with respect to a credit agreement between, among
others, the Contributor and HSBC Bank USA, National Association
(the “ HSBC Credit
Agreement ”) which provides that
the commitments under the HSBC Credit Agreement shall be terminated
upon the initial purchase of Series 2000-1 VFC Certificate
Interests on November 18, 2008; or (B) any day after November 18,
2008, the commitments under the HSBC Credit Agreement have been
terminated and the “Revolving Loans” thereunder paid in
full, or will be terminated and paid in full simultaneously with
the initial purchase of Series 2000-1 VFC Certificate
Interests.
The delivery of the Series 2000-1
VFC Certificates on behalf of the Company and the Company’s
acceptance of funds in connection with (x) the Series 2000-1
Purchasers’ initial purchase of the Series 2000-1 VFC
Certificates on
10
the Series 2000-1 Issuance Date and
(y) each Series 2000-1 Increase occurring on any Series 2000-1
Increase Date shall, in each case, constitute a representation and
warranty by the Company to the Series 2000-1 Purchasers as of the
Series 2000-1 Issuance Date or such Series 2000-1 Increase Date, as
the case may be, that all of the conditions contained in this
Section 2.05(c) (excluding sub-clause (iv) ) have
been satisfied.
(d)
After receipt by
each Funding Agent of the notice required by Section 2.05(a) from the Master Servicer on
behalf of the Company and the Trust, each Funding Agent shall, so
long as the conditions set forth in Sections 2.05(a) and (c) are satisfied, promptly
provide telephonic notice:
(i)
prior to the
occurrence of a Conduit Purchaser Termination Event with respect to
the related Series 2000-1 Conduit Purchaser, to the related Series
2000-1 Conduit Purchaser; and
(ii)
on and after the
occurrence of a Conduit Purchaser Termination Event with respect to
the related Series 2000-1 Conduit Purchaser or in the event the
related Series 2000-1 Conduit Purchaser elects not to fund the
requested Series 2000-1 Increase Amount, to each related Series
2000-1 APA Bank,
of the Series 2000-1 Increase Date
and of the portion of the Series 2000-1 Increase Amount allocable
to such Series 2000-1 Conduit Purchaser and to such Series 2000-1
APA Bank (which shall equal such Series 2000-1 Conduit
Purchaser’s VFC Currency Pro Rata Share of the Series 2000-1
Increase Amount in a specified currency and in the case of any
Series 2000-1 APA Bank, its Series 2000-1 Currency Commitment
Percentage of the Series 2000-1 Increase Amount in a specified
currency). The Master Servicer shall promptly notify the
Company of the Series 2000-1 Increase Date and the amount of the
Series 2000-1 Subordinated Interest Increase Amount. If a
Series 2000-1 Conduit Purchaser elects to fund a Series 2000-1
Increase in a specified currency, such Series 2000-1 Conduit
Purchaser agrees to pay in immediately available funds its VFC
Currency Pro Rata Share of the amount of such Series 2000-1
Increase on the related Series 2000-1 Increase Date to the Trust
for deposit in the Series 2000-1 Principal Concentration Subaccount
for distribution to the Company in accordance with the terms of the
Transaction Documents. On or after the occurrence of a
Conduit Purchaser Termination Event with respect to a Series 2000-1
Conduit Purchaser or in the event a Series 2000-1 Conduit Purchaser
elects not to fund the requested Series 2000-1 Increase Amount,
each related Series 2000-1 APA Bank agrees to pay in immediately
available funds such Series 2000-1 APA Bank’s Series 2000-1
Currency Commitment Percentage of each Series 2000-1 Increase in a
specified currency on the related Series 2000-1 Increase Date to
the Trust for deposit in the Series 2000-1 Principal Concentration
Subaccount for distribution to the Company in accordance with the
terms of the Transaction Documents.
11
SECTION 2.06
Sale by a Series 2000-1 Conduit
Purchaser of its Series 2000-1 Purchaser Invested Amount to a
Series 2000-1 APA Bank.
(a)
On any date prior
to the Series 2000-1 Commitment Termination Date, each Series
2000-1 Conduit Purchaser may deliver a Sale Notice to the related
Funding Agent, the Company, the Master Servicer and the Trustee, to
sell to the related Series 2000-1 APA Banks (in accordance with
their respective APA Pro Rata Share), and each Series 2000-1 APA
Bank hereby agrees to purchase its Series 2000-1 Commitment
Percentage of, the APA Pro Rata Share of such Conduit Purchaser
Interest of the Conduit Purchaser in its VFC Purchaser Group at the
applicable Series 2000-1 Purchase Price. Each Sale Notice
shall be delivered by the relevant Series 2000-1 Conduit Purchaser
to the applicable Funding Agent, the Company, the Master Servicer
and the Trustee prior to 12:30 p.m. New York City time, on the
proposed Series 2000-1 Purchase Date and shall constitute an
irrevocable offer by such Series 2000-1 Conduit Purchaser to sell
the portion of its Series 2000-1 Purchaser Invested Amount
designated in such notice at the applicable Series 2000-1 Purchase
Price. The Series 2000-1 Purchase Amount set forth in any
Sale Notice delivered by a Series 2000-1 Conduit Purchaser on the
Series 2000-1 Commitment Termination Date or upon the occurrence of
a Conduit Purchaser Termination Event with respect to such Conduit
Purchaser shall equal 100% of the applicable Conduit Purchaser
Interest. Each Series 2000-1 APA Bank hereby
agrees to purchase from the related Series 2000-1 Conduit Purchaser
such Series 2000-1 APA Bank’s APA Pro Rata Share of the
Series 2000-1 Purchase Percentage of the applicable Conduit
Purchaser Interest for a purchase price equal to such Series 2000-1
APA Bank’s APA Pro Rata Share of the applicable Series 2000-1
Purchase Price on such Series 2000-1 Purchase Date (which date,
subject to Section
2.06(b) ,
may be the same as the date of the Sale Notice).
Notwithstanding anything to the contrary set forth in this
Supplement, no Series 2000-1 APA Bank shall have any obligation to
purchase all or any portion of the Conduit Purchaser Interest from
the related Series 2000-1 Conduit Purchaser if, on such Series
2000-1 Purchase Date, any Conduit Purchaser Insolvency Event shall
have occurred and be continuing with respect to such Series 2000-1
Conduit Purchaser.
(b)
If, at or prior
to 12:30 p.m. New York City time on any Business Day, a Series
2000-1 Conduit Purchaser delivers a Sale Notice to the applicable
Funding Agent specifying that the related Series 2000-1 Purchase
Date shall be the same date as the date of the Sale Notice, such
Funding Agent shall, by no later than 1:30 p.m. New York City time,
on such Business Day, notify (by telecopy or by telephone call
promptly confirmed in writing by telecopy) the related Series
2000-1 APA Banks of the receipt and content of the Sale
Notice. Each related Series 2000-1 APA Bank shall purchase
its APA Pro Rata Share of the Series 2000-1 Purchase Percentage of
the Conduit Purchaser Interest of such Series 2000-1 Conduit
Purchaser by depositing its APA Pro Rata Share of the applicable
Series 2000-1 Purchase Price in immediately available funds into
the account(s) specified by the Series 2000-1 Conduit Purchaser in
the Sale Notice no later than 3:00 p.m. New York City time on the
same date as the date of such notice. If a Series 2000-1
Conduit Purchaser delivers a Sale Notice to the related Funding
Agent after 12:30 p.m. New York City time on
12
any Business Day
or a Series 2000-1 Conduit Purchaser delivers a Sale Notice to the
related Funding Agent specifying that the related Series 2000-1
Purchase Date shall be a date other than the date of the Sale
Notice, such Funding Agent shall promptly advise (by telecopy or by
telephone call promptly confirmed in writing by telecopy) each
related Series 2000-1 APA Bank of the receipt and content of the
Sale Notice. Notwithstanding the fact that the Series 2000-1
Purchase Date may occur on a date which is later than the date on
which the Sale Notice is delivered to the related Funding Agent,
the several obligations of each related Series 2000-1 APA Bank to
make such purchase and to make payment of the amounts required to
be paid by it pursuant to Section 2.06(a) shall arise immediately upon
receipt by such Funding Agent of the Sale Notice. Upon
payment of the applicable Series 2000-1 Purchase Price as provided
herein and delivery to the Trustee by a Funding Agent of the
related Series 2000-1 Conduit Purchaser’s Series 2000-1 VFC
Certificate, the Trustee shall sign, on behalf of the Trust and
without incurring any personal liability in respect of the Investor
Certificates, and shall, upon the written direction of the Master
Servicer, duly authenticate new Series 2000-1 VFC Certificates in
the name of the relevant Funding Agent, for the benefit of each
relevant Series 2000-1 APA Bank, with a Series 2000-1 VFC
Certificate Interest with respect to each Series 2000-1 APA Bank
equal to such Series 2000-1 APA Bank’s APA Pro Rata Share of
the VFC Pro Rata Share for its VFC Purchaser Group of the Series
2000-1 Maximum Invested Amount (with reference to
clause (a) only of the definition
thereof) and in the name of the relevant Series 2000-1 Conduit
Purchaser in a denomination equal to the VFC Pro Rata Share for its
VFC Purchaser Group of the Series 2000-1 Maximum Invested Amount
(with reference to clause
(a) only
of the definition thereof) minus the aggregate amount of the
Series 2000-1 VFC Certificate Interests of its related Series
2000-1 APA Banks, as set forth in such written direction and shall
deliver such Series 2000-1 VFC Certificates to the relevant Funding
Agent, if applicable, in accordance with such written
direction.
(c)
If, by 3:00 p.m.
New York City time, on any Series 2000-1 Purchase Date, any Series
2000-1 APA Bank (any such Series 2000-1 APA Bank, a “
Series 2000-1 Defaulting APA
Bank ”, and any related
Series 2000-1 APA Bank (if any) which is a member of the same VFC
Purchaser Group other than the Series 2000-1 Defaulting APA Bank
being referred to as a “ Series 2000-1 Non-Defaulting APA Bank
”) fails to
make its APA Pro Rata Share of the Series 2000-1 Purchase Price
available to the relevant Funding Agent pursuant to
Section 2.06(b) (the aggregate amount not so
made available to the Funding Agent being referred to as the
“ Series 2000-1
Purchase Price Deficit ”), then such Funding
Agent shall, by no later than 3:30 p.m. New York City time, on such
Series 2000-1 Purchase Date, instruct each Series 2000-1
Non-Defaulting APA Bank to pay, by no later than 4:00 p.m. New York
City time on such Series 2000-1 Purchase Date, in immediately
available funds, to the account designated by such Funding Agent,
an amount equal to the lesser of (x) such Series 2000-1
Non-Defaulting APA Banks’ proportionate share (based upon the
relative Series 2000-1 Commitments of the Series 2000-1
Non-Defaulting APA Banks) of the Series 2000-1 Purchase Price
Deficit and (y) such Series 2000-1 Non-Defaulting APA Bank’s
unused Series 2000-1 Commitment. A
13
Series 2000-1
Defaulting APA Bank shall forthwith, upon demand, pay to the
related Funding Agent for the ratable benefit of the Series 2000-1
Non-Defaulting APA Banks all amounts paid by each Series 2000-1
Non-Defaulting APA Bank on behalf of such Series 2000-1 Defaulting
APA Bank, together with interest thereon, for each day from the
date a payment was made by a Series 2000-1 Non-Defaulting APA Bank
until the date such Series 2000-1 Non-Defaulting APA Bank has been
paid such amounts in full, at a rate per annum equal to the sum of
the Federal Funds Effective Rate plus 2%. In addition,
without prejudice to any other rights that a Series 2000-1 Conduit
Purchaser may have under applicable law, each Series 2000-1
Defaulting APA Bank shall pay to the related Series 2000-1 Conduit
Purchaser forthwith upon demand, the difference between the Series
2000-1 Defaulting APA Bank’s APA Pro Rata Share of the
applicable Series 2000-1 Purchase Price and the amount paid with
respect thereto by the Series 2000-1 Non-Defaulting APA Banks,
together with interest thereon, for each day from the date of the
related Funding Agent’s request for such Series 2000-1
Defaulting APA Bank’s APA Pro Rata Share of the applicable
Series 2000-1 Purchase Price pursuant to Section 2.06(b) until the date the requisite
amount is paid to the related Series 2000-1 Conduit Purchaser in
full, at a rate per annum equal to the sum of the Federal Funds
Effective Rate plus
2%.
(d)
The transfer by a
Series 2000-1 Conduit Purchaser of all or a portion of its rights
in a Series 2000-1 VFC Certificate pursuant to this
Section 2.06 shall be without recourse or
warranty, express or implied, except that such Series 2000-1
Conduit Purchaser represents that such Series 2000-1 VFC
Certificate is free and clear of adverse claims created by or
arising as a result of claims against such Series 2000-1 Conduit
Purchaser. By executing and delivering a Sale Notice pursuant
to Section 2.06(a)
, such Series
2000-1 Conduit Purchaser makes no representation or warranty and
assumes no responsibility with respect to:
(i)
any statements,
warranties or representations made in or in connection with such
Series 2000-1 VFC Certificate or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of such Series
2000-1 VFC Certificate, or any other agreement, instrument or other
document furnished pursuant thereto or in connection therewith,
including any Transaction Document; or
(ii)
the financial
condition of the Trust, the Trustee, the Master Servicer, any
Originator, the Company or any Obligor (collectively, the
“ Transaction
Parties ”), any other Series
2000-1 Conduit Purchaser, any Series 2000-1 APA Bank or any Funding
Agent, or the performance or observance by the Transaction Parties
of any of their respective obligations under the Series 2000-1 VFC
Certificates or the Transaction Documents.
(e)
If on the related
Series 2000-1 Purchase Date, there is an applicable Series 2000-1
Loss Amount, then, in such event, each Series 2000-1 APA Bank in
the VFC Purchaser Group with respect to the sale occurring on such
Series 2000-1 Purchase Date agrees that the related Funding Agent,
for the benefit of the related Series 2000-1 Conduit Purchaser,
shall, after the applicable APA
14
Bank Aggregate
Invested Amount is zero, remit to the related Series 2000-1 Conduit
Purchaser the applicable Series 2000-1 Reduction Percentage of any
amounts received by such Funding Agent with respect to a Series
2000-1 VFC Certificate immediately after receipt of such
amounts.
SECTION 2.07
Procedure for Decreasing the Series
2000-1 Invested Amount.
(a)
Subject to
Section 7.04 , on any Business Day during
the Series 2000-1 Revolving Period or the Series 2000-1
Amortization Period (except for Distribution Dates during the
Series 2000-1 Amortization Period (which shall be governed
by Section 3A.06(c)
)), upon written
request by the Master Servicer, the Series 2000-1 U.S. Dollar
Invested Amount, the Series 2000-1 Euro Invested Amount and/or the
Series 2000-1 Sterling Invested Amount may be reduced (a
“ Series 2000-1
Decrease ”) by the
distribution, in accordance with Section 3A.03(b) , by the Trustee for the
pro rata benefit of the Series 2000-1 Purchasers (determined
based on the amount which their Series 2000-1 Purchaser U.S. Dollar
Invested Amount, Series 2000-1 Purchaser Euro Invested Amount
and/or Series 2000-1 Purchaser Sterling Invested Amount (as
applicable) represents of the aggregate Series 2000-1 Invested
Amount denominated in the applicable currency and
Section 2.07(e) ) of the aggregate funds on
deposit in the Series 2000-1 Principal Concentration Subaccounts on
such day (including any funds deposited therein pursuant to
Section 3A.02(d) ) in an amount not to exceed
the amount of such aggregate funds on deposit on such day (each
date on which a Series 2000-1 Decrease in the Series 2000-1 U.S.
Dollar Invested Amount, Series 2000-1 Euro Invested Amount or
Series 2000-1 Sterling Invested Amount occurs hereunder being
herein referred to as the “ Series 2000-1 Decrease Date ” applicable to such
Series 2000-1 Decrease); provided , that:
(i)
the Master
Servicer shall have made such written request by giving each
Funding Agent (with a copy to the Administrative Agent and the
Trustee) irrevocable written notice (effective upon receipt),
substantially in the form of Exhibit F hereto, stating the amount
and currency of such Series 2000-1 Decrease, prior to 7:00 a.m. New
York City time,
(A)
on the second (2 nd )
Business Day prior to the Series 2000-1 Decrease Date, if all or
any portion of the Series 2000-1 Decrease relates to a Series
2000-1 CP Tranche;
(B)
on the Business Day of the Series
2000-1 Decrease Date, if the Series 2000-1 Decrease relates solely
to a Series 2000-1 Floating Tranche; or
(C)
on the Business Day that is three
(3) Business Days prior to the Series 2000-1 Decrease, if all or
any portion of the Series 2000-1 Decrease relates to a Series
2000-1 Eurocurrency Tranche;
provided that a Series 2000-1
Decrease pursuant to Section 2.15 or 2.16 shall occur on the day determined in
accordance with the applicable Section.
15
(ii)
(1) in respect of
a Series 2000-1 U.S. Dollar VFC Certificate, such Series 2000-1
Decrease shall be in an amount equal to $1,000,000 and integral
multiples of $100,000 in excess thereof or the Series 2000-1 U.S.
Dollar Invested Amount at such time or (2) in respect of a Series
2000-1 Euro VFC Certificate, such Series 2000-1 Decrease shall be
in an amount equal to €1,000,000 and in integral multiples of
€100,000 in excess thereof or the Series 2000-1 Euro Invested
Amount at such time or (3) in respect of a Series 2000-1 Sterling
VFC Certificate, such Series 2000-1 Decrease shall be in an amount
equal to £1,000,000 and in integral multiples of £100,000
in excess thereof or the Series 2000-1 Sterling Invested Amount at
such time; provided
that with respect
to any Series 2000-1 Decrease pursuant to Section 2.07(f) such Series 2000-1 Decrease
shall be in a minimum amount for each relevant VFC Purchaser Group
of $100,000, €100,000 or £100,000 (as applicable);
and
(iii)
no Series 2000-1
Decrease with respect to a Series 2000-1 Eurocurrency Tranche prior
to the termination of the applicable Series 2000-1 Eurocurrency
Period may occur unless, concurrently with such Series 2000-1
Decrease, the Company shall have paid to the Series 2000-1
Purchasers any amounts due and payable pursuant to
Section 7.04 .
Each distribution pursuant to this
Section 2.07(a) shall be made by the Trustee distributing to
each Funding Agent the amount of such Series 2000-1 Decrease
allocable to the Series 2000-1 Purchasers in such Funding
Agent’s VFC Purchaser Group.
(b)
Simultaneously
with any such Series 2000-1 Decrease during the Series 2000-1
Revolving Period, the Series 2000-1 Subordinated Interest Amount
shall be reduced by an amount (the “ Series 2000-1 Subordinated Interest Reduction
Amount ”) such that the Series
2000-1 Subordinated Interest Amount shall equal the Series 2000-1
Required Subordinated Amount after giving effect to such Series
2000-1 Decrease. During the Series 2000-1 Revolving Period,
after the distribution described in Section 2.07(a) has been made, and the
Series 2000-1 Subordinated Interest Amount shall have been reduced
by the Series 2000-1 Subordinated Interest Reduction Amount, a
distribution shall be made, in accordance with Section 3A.03(b) , by the Trustee to the
holder of the Series 2000-1 Subordinated Interest out of remaining
aggregate funds on deposit in the Series 2000-1 Principal
Concentration Subaccounts in an amount equal to the lesser of (x)
the Series 2000-1 Subordinated Interest Reduction Amount and (y)
the amount of such remaining aggregate funds on deposit in the
Series 2000-1 Principal Concentration Subaccount.
(c)
Notwithstanding
Section 2.07(a) , the Funding Agents may, on
or prior to the maturity date of any (i) Series 2000-1 Eurocurrency
Tranche; (ii) Series 2000-1 Floating Tranche; or (iii) Series
2000-1 CP Tranche, by providing written notice to the Trustee and
Master Servicer, elect to decrease, in whole or in part, the Series
2000-1 Invested Amount on the applicable maturity date in the
amount specified in such notice. In accordance with any such
notice, on the
16
maturity of the
relevant tranches, the Trustee shall distribute, in accordance
with Section 3A.03(b)
, for the pro
rata benefit of the Series 2000-1 Purchasers (determined based
on the amount their Series 2000-1 Purchaser U.S. Dollar Invested
Amount, Series 2000-1 Purchaser Euro Invested Amount and/or Series
2000-1 Purchaser Sterling Invested Amount (as applicable)
represents of the aggregate Series 2000-1 Invested Amount
denominated in the applicable currency and Section 2.07(e) ), of the aggregate funds on
deposit in the Series 2000-1 Principal Concentration Subaccounts on
such day in an amount not to exceed the lesser of (i) the amount of
such aggregate funds on deposit in such subaccounts; and (ii) the
decrease in the Series 2000-1 Invested Amount requested by the
Funding Agents, plus
all interest and
fees payable with respect thereto. Notwithstanding the
foregoing, the exercise of such option by the Series 2000-1
Purchasers shall not result in a reduction of the respective
commitments of the Series 2000-1 Conduit Purchasers or the
commitments of any of the Series 2000-1 APA Banks pursuant
to Section 2.08
. If the
Series 2000-1 Purchasers exercise their rights hereunder, so long
as the Series 2000-1 Commitments are outstanding and any amount
hereunder remains payable to any Series 2000-1 Purchaser, the
Series 2000-1 Purchasers shall continue to have the benefit of the
security interests created hereunder. Each distribution
pursuant to this Section
2.07(c) shall be made by the Trustee
distributing to each Funding Agent the amount of such reduction
(plus interest and fees payable with respect thereto) allocable to
the Series 2000-1 Purchasers in such Funding Agent’s VFC
Purchaser Group.
(d)
Subject to
Section 2.07(e) , any reduction in the
Series 2000-1 Invested Amount with respect to a VFC Purchaser Group
on any Business Day shall be allocated in the following order of
priority:
(i)
first , to reduce pro rata
the portion of the Series 2000-1 Invested Amount with respect to
such VFC Purchaser Group allocated to Series 2000-1 CP Tranches and
the Series 2000-1 Unallocated Balance, as appropriate;
and
(ii)
second , to reduce the portion of
the Series 2000-1 Invested Amount with respect to such VFC
Purchaser Group allocated to Series 2000-1 Eurocurrency Tranches in
such order as the Master Servicer may select in order to minimize
interest expenses and costs payable pursuant to Section 7.04 .
Each distribution pursuant to this
Section 2.07(d) shall be made by the Trustee distributing to
each Funding Agent the amount of such reduction (plus interest and
fees payable with respect thereto) allocable to the Series 2000-1
Purchasers in such Funding Agent’s VFC Purchaser
Group.
(e)
Any decrease in
the Series 2000-1 Purchaser Invested Amount pursuant to
Section 2.07(a) or (c) shall be allocated between
the Series 2000-1 U.S. Dollar Invested Amount, the Series 2000-1
Euro Invested Amount and the Series 2000-1 Sterling Invested Amount
as provided in the notice given by the Master Servicer under
Section 2.07(a) or by the Funding Agents
under Section 2.07(c)
.
17
(f)
Notwithstanding
the foregoing, a Series 2000-1 Decrease initiated pursuant to the
requirements of Section
2.15 or Section 2.16 shall be implemented in
accordance with this Section
2.07 ; provided that the provisions of
this Section 2.07
shall be applied
solely with respect to the relevant VFC Purchaser Group, mutatis
mutandis , rather than to all VFC Purchaser Groups.
SECTION 2.08
Reductions of the Series 2000-1
Commitments.
(a)
On any
Distribution Date during the Series 2000-1 Revolving Period, the
Master Servicer, on behalf of the Company and the Trust may, upon
three (3) Business Days prior written notice to the Funding Agents
(with a copy to the Trustee), reduce or terminate the Series 2000-1
Commitments (a “ Series
2000-1 Commitment Reduction ”);
provided that:
(i)
in the case of a
reduction, the Series 2000-1 Aggregate Commitment Amount may only
be reduced in an amount equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and in the case of a termination, the
Series 2000-1 Aggregate Commitment Amount and the Series 2000-1
Commitments shall each be terminated in their entirety;
and
(ii)
no such reduction
or termination, as the case may be, shall be permitted if, after
giving effect thereto and to any reduction in the Series 2000-1
Invested Amount (calculated without regard to clauses (c)(iv) and (v) of the definitions of Series
2000-1 Purchaser U.S. Dollar Invested Amount, Series 2000-1
Purchaser Euro Invested Amount and Series 2000-1 Purchaser Sterling
Invested Amount (as applicable but with regard to
clause (d) of the definition of Series
2000-1 Purchaser Euro Invested Amount and Series 2000-1 Purchaser
Sterling Invested Amount)) on such date, the Series 2000-1 Invested
Amount would exceed an amount equal to the Series 2000-1 Adjusted
Aggregate Commitment Amount then in effect.
Each Series 2000-1 APA Bank’s
Series 2000-1 Commitment shall be reduced pro rata by such
Series 2000-1 APA Bank’s Series 2000-1 Adjusted Commitment
Percentage of the amount of such Series 2000-1 Commitment
Reduction.
(b)
If the Series
2000-1 Amortization Period has commenced, the Series 2000-1 Maximum
Invested Amount shall be reduced to the Series 2000-1 Invested
Amount outstanding from time to time and each Series 2000-1 APA
Bank’s Series 2000-1 Commitment shall be reduced by the
product of (i) such Series 2000-1 APA Bank’s Series 2000-1
Commitment Percentage multiplied by (ii) of the amount of such
reduction multiplied
by (iii)
the Applicable Liquidity Percentage.
(c)
Each Series
2000-1 APA Bank’s Series 2000-1 Commitment shall be reduced
by the product of (i) such Series 2000-1 APA Bank’s Series
2000-1 Commitment Percentage multiplied by (ii) the amount of any
relevant principal reduction amount applied to the reduction of the
Series 2000-1
18
Invested Amounts
pursuant to Section
2.07(d) or 2.07(e) multiplied by (iii) the Applicable
Liquidity Percentage.
(d)
Once reduced or
terminated as provided in this Section 2.08 , the portion of the Series
2000-1 Aggregate Commitment Amount so reduced or terminated may not
be subsequently reinstated. Upon effectiveness of any such
reduction or termination, the Administrative Agent shall prepare a
revised Schedule I
of this
Supplement to reflect the reduced or terminated Series 2000-1
Commitment of each Series 2000-1 APA Bank and Schedule I of this Supplement shall be
deemed to be automatically superseded by such revised
Schedule I . The Administrative
Agent shall distribute such revised Schedule I to the Company, the Master
Servicer, the Trustee and each Funding Agent. Concurrently
therewith, each Funding Agent shall distribute a revised
Annex I to the Series 2000-1 Asset
Purchase Agreement with respect to its VFC Purchaser Group to the
Company, the Master Servicer, the Administrative Agent, the Trustee
and each related Series 2000-1 APA Bank.
SECTION 2.09
Interest; Fees.
(a)
Amounts in
respect of interest on the Series 2000-1 VFC Certificates shall be
determined in accordance with Section 3A.04 and shall be payable on each
Distribution Date or other applicable day pursuant to
Section 3A.06(a) .
(b)
Prior to the
Series 2000-1 Scheduled Commitment Termination Date, the Series
2000-1 Purchasers shall be entitled to receive a fee with respect
to each Accrual Period (or portion thereof) payable on each
Distribution Date during the Series 2000-1 Revolving Period (the
“ Series 2000-1 Unused
Fee ”). The Series
2000-1 Unused Fee shall accrue on each day during such Accrual
Period in an amount equal to the product of (i) the Series 2000-1
Unused Fee Rate, times
(ii) the amount
by which the average of the Series 2000-1 Aggregate Commitment
Amount during such Accrual Period exceeds the Series 2000-1
Invested Amount of the related VFC Purchaser Group on such
day. The Series 2000-1 Unused Fee shall be determined in
accordance with Section
3A.04 and
be payable on a pro rata basis (based on the amount which
the then applicable Series 2000-1 Invested Amount owned by the
relevant Series 2000-1 Purchaser represents of the then applicable
Series 2000-1 Invested Amount owned by all Series 2000-1
Purchasers) to each Funding Agent for the benefit of the Series
2000-1 Conduit Purchaser in its related VFC Purchaser Group or the
Series 2000-1 APA Banks in such related VFC Purchaser Group as part
of the Series 2000-1 Monthly Interest on each Distribution Date
during the Series 2000-1 Revolving Period. The Trustee shall
not be liable for the payment of the Series 2000-1 Unused Fee from
its own funds.
(c)
Each Series
2000-1 Conduit Purchaser shall be entitled to receive a fee with
respect to each Accrual Period (or portion thereof) payable on each
Distribution Date during the period prior to the occurrence of a
Conduit Purchaser Termination Event with respect to such Series
2000-1 Conduit Purchaser (the “ Series 2000-1 Utilization Fee
”).
The Series 2000-1 Utilization Fee shall accrue on each day during
such Accrual Period in an amount equal to the product of (i) the
Series 2000-1 Utilization Fee Rate,
19
times (ii) the aggregate of the
Series 2000-1 Invested Amount funded by the Series 2000-1 Conduit
Purchasers on such day. The Series 2000-1 Utilization Fee
shall be determined in accordance with Section 3A.04 and be payable on a pro rata
basis (based on the amount which the then applicable Series 2000-1
Invested Amount owned by the relevant Series 2000-1 Conduit
Purchaser represents of the then applicable Series 2000-1 Invested
Amount owned by all Series 2000-1 Conduit Purchasers) to each
Funding Agent for the benefit of the Series 2000-1 Conduit
Purchaser in its related VFC Purchaser Group as part of the Series
2000-1 Monthly Interest on each Distribution Date prior to the
occurrence of a Conduit Purchaser Termination Event with respect to
such Series 2000-1 Conduit Purchaser. The Trustee shall not
be liable for the payment of the Series 2000-1 Utilization Fee from
its own funds.
(d)
Calculations of
per annum rates under this Supplement shall be made on the basis of
the actual number of days elapsed and a 360 day year with respect
to interest rates except with respect to interest rates based on
ABR or the calculation of interest with respect to the Series
2000-1 Sterling Invested Amount, each of which shall be calculated
on the basis of the actual number of days elapsed and a 365 (or
366, as the case may be) day year. Each Funding Agent shall
provide an initial notice of the inclusion of Mandatory Costs in
the determination of the Eurocurrency Rate promptly after such
Funding Agent becomes aware of such condition; provided that the failure to provide
such notice shall not affect or limit the right to include
Mandatory Costs in the determination of the Eurocurrency
Rate. Each determination of Eurocurrency Rate including (if
applicable) any Mandatory Costs by each Funding Agent shall be
conclusive and binding upon each of the parties hereto in the
absence of manifest error.
SECTION 2.10
Indemnification by Huntsman
International and the Company.
(a)
Without limiting
any other rights that the Funding Agents, the Administrative Agent,
the Series 2000-1 Conduit Purchasers or the Series 2000-1 APA Banks
may have under this Supplement, the Pooling Agreement, the other
Transaction Documents or under applicable law, each of Huntsman
International and the Company hereby agrees to indemnify the
Funding Agents, the Administrative Agent, the Series 2000-1 Conduit
Purchasers and the Series 2000-1 APA Banks and any of their
respective agents, officers, directors, employees, and agents (each
a “ Series 2000-1
Indemnified Party ” and collectively, the
“ Series 2000-1
Indemnified Parties ”) from and against any
and all damages, losses, claims, liabilities, costs, penalties,
judgments and expenses, including reasonable attorneys’ fees
and reasonable disbursements (all of the foregoing being
collectively referred to as “ Series 2000-1 Indemnified Amounts
”) awarded
against or incurred by any of them in connection with the entering
into and performance of this Supplement or any of the Transaction
Documents by any of the Series 2000-1 Indemnified Parties,
excluding, however, any amounts that are finally judicially
determined to have resulted from the gross negligence or willful
misconduct on the part of any Series 2000-1 Indemnified
Party; provided
that in no event
shall Huntsman International be required to make any indemnity
payments resulting from the lack of performance or collectibility
of the Receivables owned by the
20
Company (unless
such loss results from a breach of representation or undertaking by
Huntsman International or one of its Affiliates with respect to any
such Receivable).
(b)
In case any
proceeding by any Person shall be instituted involving any Series
2000-1 Indemnified Party in respect of which indemnity may be
sought pursuant to Section
2.10(a) ,
such Series 2000-1 Indemnified Party shall promptly notify Huntsman
International and the Company and the Company and Huntsman
International, upon request of such Series 2000-1 Indemnified
Party, shall retain counsel satisfactory to such Series 2000-1
Indemnified Party to represent such Series 2000-1 Indemnified Party
and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any
Series 2000-1 Indemnified Party shall have the right to retain its
own counsel, at the expense of Huntsman International and the
Company. Except as set forth herein, it is understood that
neither the Company nor the Master Servicer shall, in respect of
the legal expenses of any Series 2000-1 Indemnified Party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of
more than one separate firm (in addition to any local counsel) for
all such Series 2000-1 Indemnified Parties and all other parties
indemnified by the Company under this Supplement, the Series 2000-1
Asset Purchase Agreements or any other Transaction
Document.
(c)
Any payments to
be made by Huntsman International and the Company pursuant to this
Section shall be, without restriction, due and payable from
Huntsman International and the Company, jointly and severally, and
shall with respect to amounts owing from the Company be (i) Company
Subordinated Obligations, (ii) be made solely from funds available
to the Company that are not required to be applied to Company
Unsubordinated Obligations then due and (iii) not constitute a
general recourse claim against the Company, but only a claim
payable after the satisfaction of all Company Unsubordinated
Obligations then due, except to the extent that funds are available
(including funds available to the Company pursuant to the exercise
of its right to indemnity and other payments pursuant to
Sections 2.06 and 8.02 (or equivalent sections) of
the Origination Agreements) to the Company to make such
payments.
SECTION 2.11
Inability to Determine Eurocurrency
Rate.
If, prior to the first day on which any Series
2000-1 Eurocurrency Tranche commences:
(a)
any Funding Agent
shall have determined or shall have been notified (which
determination or notification, in the absence of manifest error,
shall be conclusive and binding upon the Company) that, by reason
of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the applicable
Eurocurrency Rate for such Series 2000-1 Eurocurrency Tranche;
or
(b)
any Funding Agent
shall have received notice from one or more related Series 2000-1
APA Banks that the applicable Eurocurrency Rate determined or to be
determined for such Series 2000-1 Eurocurrency Tranche will not
adequately
21
and fairly
reflect the cost to such Series 2000-1 APA Bank (as conclusively
certified by such Series 2000-1 APA Bank(s)) of purchasing or
maintaining its/their affected portions of relevant Series 2000-1
Eurocurrency Tranches during the related Settlement
Period;
then, in either such event, such Funding Agent
shall give telecopy or telephonic notice thereof (confirmed in
writing) to the Company, the Master Servicer, the Administrative
Agent, the Trustee and the Series 2000-1 APA Banks as soon as
practicable (but, in any event, within forty-five (45) days after
such determination or notice, as applicable) thereafter. Upon
delivery of such notice and until such notice has been withdrawn by
such Funding Agent, no further Series 2000-1 Eurocurrency Tranches
shall be made in the relevant currency or currencies. Each
Funding Agent agrees to withdraw any such notice as soon as
reasonably practicable after such Funding Agent is notified of a
change in circumstances which makes such notice
inapplicable.
SECTION 2.12
Series 2000-1 FX Hedging
Agreements.
The Trustee shall at all times comply with the
FX Hedging Policy set forth in Schedule 6 of the Pooling
Agreement.
SECTION 2.13
Notices, Reports, Directions by
Master Servicer.
Any information, notice or report to be
delivered by, or any instructions, requests, demands, elections or
directions to be given by, the Master Servicer under this
Supplement is, unless otherwise indicated, being delivered or given
by the Master Servicer on behalf of the Company in accordance with
the provisions of the Pooling Agreement, this Supplement and the
Servicing Agreement.
SECTION 2.14
Optional Termination by the
Company.
(a)
On any Business
Day, the Master Servicer may require the Trustee to cause the
Series 2000-1 Revolving Period to terminate on the date (the
“ Series 2000-1
Optional Termination Date ”) set forth in an
irrevocable written notice (the “ Series 2000-1 Optional Termination Notice
”)
delivered by the Master Servicer to the Trustee (which date, in any
event, shall not be less than (i) thirty (30) days after the date
on which such notice is delivered or (ii) as otherwise provided
in Section 2.14(d)
).
Following the occurrence of the Series 2000-1 Optional Termination
Date, no amounts deposited in the Series 2000-1 Principal
Collection Subaccount will be distributed to the Company until the
Series 2000-1 Invested Amount is paid in full. To the extent
allocated funds are available therefore, payments of principal on
the Series 2000-1 VFC Certificates will commence on the
Distribution Date next succeeding the Series 2000-1 Optional
Termination Date and will be made on each Distribution Date
thereafter until the Series 2000-1 Invested Amount is paid in full
or the Participation Assets allocated to the Series 2000-1
Interests have been depleted. Notwithstanding the foregoing,
the Series 2000-1 Invested Amount may, on (i) any Distribution Date
on or after the Series 2000-1 Optional Termination Date, be paid in
full out of the proceeds of the issuance of a new Series of
Investor Certificates issued in accordance with Section 5.11 of the Pooling Agreement,
together with (if applicable) funds available in the Series 2000-1
Principal Collection Subaccount or (ii) the
22
Series 2000-1
Optional Termination Date, be paid in full in accordance with the
terms set forth in Section
2.14(b) through Section 2.14(h) . The Trustee shall
give prompt notice of its receipt of a Series 2000-1 Optional
Termination Notice under this Section 2.14(a) to the Series 2000-1 VFC
Certificateholders (in the form and at the location specified by
such VFC Certificateholder or the Trustee).
(b)
In connection
with the consummation of the acquisition of control of the Parent
Company by Hexion Specialty Chemicals Inc. (the “
Hexion Acquisition
”), on any
Business Day, the Master Servicer may require the Trustee to cause
the Series 2000-1 Revolving Period to terminate on the Series
2000-1 Optional Termination Date on the terms set forth in
Section 2.14(b) through Section 2.14(h) . The Master Servicer
may initiate, on a preliminary basis, procedures for a Series
2000-1 Optional Termination Date by delivering to the Trustee, the
Administrative Agent and each Funding Agent a written notice (an
“ Initiation
Notice ”) by 11:00 a.m. (New
York time) specifying a potential Series 2000-1 Optional
Termination Date (a “ Potential Series 2000-1 Optional Termination
Date ”) which date shall not
be less than one (1) Business Day after the date on which such
notice is delivered. Each Funding Agent (on behalf of itself
and the Series 2000-1 Purchasers in its VFC Purchaser Group) and
the Administrative Agent shall, by 5:00 p.m. (New York time) on the
date of receipt of such notice, notify the Company, the Contributor
and the Master Servicer of the amount (determined in accordance
with the definition of Series 2000-1 Pay-Off Amounts) estimated to
pay in full all Company Obligations owing to the Series 2000-1
Purchasers, the Funding Agents, the Administrative Agent and the
Trustee (the “ Series
2000-1 Finance Parties ”) as if such amounts
were paid on such Potential Series 2000-1 Optional Termination Date
(collectively, the “ Estimated Payoff Amount ”). If the
Hexion Acquisition does not occur, for any reason, on a Potential
Series 2000-1 Optional Termination Date, but is expected to occur
after such Potential Series 2000-1 Optional Termination Date, then,
(i) if the following Business Day is not a Renotification Date, the
following Business Day will be deemed to be the new Potential
Series 2000-1 Optional Termination Date without any further notice
and (ii) if the following Business Day is a Renotification Date,
then the Master Servicer will deliver a written notice specifying a
new Potential Series 2000-1 Optional Termination Date (an
“ Extension
Notice ”), which shall take
into account the related CP Tranche Maturity Date;
provided that if the Master Servicer
does not deliver such written notice, the Funding Agent shall
determine the new CP Tranche Maturity Date at its discretion. Any
Extension Notice may only be given, and any Series 2000-1 Optional
Termination Date designated pursuant to the terms set forth
in Section 2.14(b)
through
Section 2.14(h) may occur only, on a
Business Day falling within ten (10) calendar days following the
date on which the Master Servicer has delivered the related
Initiation Notice or, if such tenth day is not a Business Day, the
following Business Day (such period, the “
Initiation Period
”);
provided that if no Series 2000-1
Optional Termination Date has occurred during an Initiation Period,
the Master Servicer may give a new Initiation Notice on the last
Business Day of such Initiation Period or any Business Day
following the end of the most recently ended Initiation
Period; provided,
further ,
that the Master Servicer may only give a
23
total of three
(3) Initiation Notices unless otherwise consented to in writing by
the Master Servicer, the Company and the Series 2000-1 Finance
Parties.
In connection with each new
Potential Series 2000-1 Optional Termination Date coinciding with
the expected date of the consummation of the Hexion Acquisition,
each Series 2000-1 Finance Party will provide, if necessary,
revised Estimated Payoff Amounts. If the Master Servicer has
knowledge that the Series 2000-1 Optional Termination Date will not
occur on the following Business Day, it shall deliver to the
Trustee, the Administrative Agent and each Funding Agent a written
notice (x) electing to suspend the procedures which would result in
each succeeding Business Day becoming a Potential Series 2000-1
Optional Termination Date and (y) designating another Business Day
within the relevant Initiation Period as a Potential Series 2000-1
Optional Termination Date and the obligation of the Funding Agents
to provide revised Estimated Payment Amounts shall be suspended
until the Business Day immediately preceding such designated
Potential Series 2000-1 Optional Termination Date.
Notwithstanding the provisions of this Section 2.14 , the
Master Servicer shall continue to deliver such notices as may be
required under Section 2.05 and Section 2.07 to
increase or decrease the Series 2000-1 Invested Amount until the
occurrence of the Series 2000-1 Optional Termination
Date.
(c)
For purposes of
this Section 2.14
:
(i)
“
Renotification Date
” means
5:00 p.m. (New York time) on a Business Day that is three (3)
Business Days prior to a related CP Tranche Maturity Date;
and
(ii)
“
CP Tranche Maturity Date
” means
each date designated by notice to the Master Servicer from the
Funding Agent for a VFC Purchaser Group as the Business Day upon
which Commercial Paper notes issued by the Series 2000-1 Conduit
Purchaser in the relevant VFC Purchaser Group (or related swap
agreements) are anticipated to mature in amounts equal to or
greater than the Series 2000-1 Purchaser Invested Amount for such
Series 2000-1 Conduit Purchaser.
(d)
Notwithstanding
the terms of Section
2.14(a) ,
if, on or prior to 3:00 p.m. (London time), on the Potential Series
2000-1 Optional Termination Date the applicable Series 2000-1
Pay-Off Amounts (as defined below) are paid to the Trustee and the
Funding Agents: (i) the Series 2000-1 Invested Amount and all other
outstanding Company Obligations shall be paid to the Series 2000-1
Finance Parties from the proceeds of the Hexion Prepayment Amount
(as defined below) and not from funds provided by the Contributor
or the Company; (ii) the Master Servicer shall be deemed to have
given the Series 2000-1 Optional Termination Notice on such date;
(iii) such date shall be deemed to be the Series 2000-1 Optional
Termination Date; and (iv) the Series 2000-1 Revolving Period shall
automatically terminate on such Series 2000-1 Optional Termination
Date. Each Funding Agent shall give prompt notice of its
receipt of any notice given by the Master Servicer under Section
2.14(b) or Section 2.14(d) to the Series 2000-1 Purchasers in its
VFC Purchaser Group.
24
(e)
The
“ Hexion Prepayment
Amount ” shall be an amount
paid to the Trustee, the Administrative Agent and the Funding
Agents, equal to the amount, calculated by each of Administrative
Agent, the Trustee and the Funding Agents to pay in full all
Company Obligations owing to the Series 2000-1 Finance Parties
as if such payment were received by them on or prior to
3:00 p.m. (London Time) one (1) Business Day after the
relevant Potential Series 2000-1 Optional Termination
Date. The Hexion Prepayment Amount for each
Series 2000-1 Purchaser will be an estimate of the sum
(without duplication) of the aggregate: (i) Series 2000-1
Daily Euro Interest Expense, Series 2000-1 Daily Dollar
Interest Expense and Series 2000-1 Daily Sterling Interest
Expense (as applicable) anticipated to accrue through the relevant
CP Tranche Maturity Date (including (A) Series 2000-1
Unused Fee through the relevant CP Tranche Maturity Date and
(B) Series 2000-1 Utilization Fee through the relevant
Potential Series 2000-1 Optional Termination Date); and
(ii) such other amounts due and owing to the
Series 2000-1 Finance Parties pursuant to the Pooling
Agreement and the Series 2000-1 Supplement, including the
applicable Series 2000-1 Purchaser Invested Amount (collectively,
the “ Series 2000-1 Pay-Off Amounts
”). The
Hexion Prepayment Amount for the Trustee shall be deemed to be the
monthly fee of USD 4,583.33 payable to the Trustee. The
Series 2000-1 Pay-Off Amounts shall be paid to the accounts of
the applicable parties pursuant to payment instructions provided by
the Series 2000-1 Finance Parties (which may be set forth in
any notice of Estimated Payoff Amounts).
(f)
The Company, the
Contributor and the Master Servicer hereby acknowledge that the
Series 2000-1 Pay-Off Amounts specified in any notice which is
given pursuant to Section 2.14(e) are only an estimate of the
amounts which are payable to the respective Series 2000-1
Finance Parties. The Contributor and the Master Servicer
hereby acknowledge and agree that if any such Series 2000-1
Pay-Off Amounts are insufficient to pay in full the amount of all
Company Obligations which are or will be payable to any
Series 2000-1 Finance Party pursuant to the Transaction
Documents, then the Contributor or the Master Servicer shall pay or
cause to be paid to the relevant Series 2000-1 Finance Party
an amount equal to any such deficiency within (2) Business
Days after written demand therefor. The Contributor and the
Master Servicer hereby acknowledge and agree that any amount
payable pursuant to the preceding sentence may include any
additional cost of funds incurred by a Series 2000-1 Finance
Party for funding any such deficiency. Each
Series 2000-1 Finance Party hereby acknowledges and agrees
that if any Series 2000-1 Pay-Off Amounts paid to it from the
proceeds of the Hexion Prepayment Amount are, in its reasonable
determination, in excess of amounts necessary to pay in full the
amount of all Company Obligations which are or will be payable to
such Series 2000-1 Finance Party pursuant to the Transaction
Documents, then such Series 2000-1 Finance Party shall pay to
the Person(s) designated by the Master Servicer an amount
equal to such excess within two (2) Business Days after the
final application of the proceeds of the Series 2000-1 Pay-Off
Amounts.
(g)
Upon receipt of
the Series 2000-1 Pay-Off Amounts on the Series 2000-1
Optional Termination Date, each Funding Agent (on behalf of itself
and the
25
Series 2000-1 Purchasers
in its VFC Purchaser Group) and the Administrative Agent shall send
written notice in the form attached hereto as Exhibit H , on or prior to
4:00 p.m. (London time) on such day, to the Trustee (with a
copy to each other) confirming receipt of such amounts. Upon
receipt by the Trustee of such notice with respect to each
Series 2000-1 Finance Party, the Trustee is hereby authorized
and directed to deliver a release in the form attached hereto
as Exhibit I
(the
“ Release
Agreement ”) on such
Series 2000-1 Optional Termination Date. Notwithstanding
anything to the contrary in this Supplement or the Agreement, the
payment of Series 2000-1 Pay-Off Amounts to the
Series 2000-1 Finance Parties in accordance with
Section 2.14(b)
through
Section 2.14(h)
shall be deemed
to be a final distribution pursuant to Section 9.03 of the Agreement with respect
to the Series 2000-1 VFC Certificates and the termination
provisions of the Pooling Agreement shall be interpreted
accordingly.
(h)
The Master
Servicer and the Contributor hereby agree to indemnify each
Series 2000-1 Finance Party and each of their respective
directors, officers, managers and employees (each an “
Indemnified Person
”) against
all losses, claims, damages, penalties, judgments, liabilities,
costs and expenses (including, but not limited to, all reasonable
fees, costs and expenses incurred in the preparation, negotiation,
execution and performance of this Series 2000-1 Supplement and
the Release Agreement) that such Indemnified Person may on behalf
of itself or any other Indemnified Person, pay or incur arising out
of or relating to this Series 2000-1 Supplement and the
Release Agreement, whether such losses, claims, damages, penalties,
judgments, liabilities, costs and expenses are paid or incurred
before, on or after the date hereof, excluding, however, any
amounts that are finally judicially determined to have resulted
from the gross negligence or willful misconduct on the part of any
Indemnified Person.
SECTION 2.15
Mandatory Reduction in
Series 2000-1 Invested Amount
On each Commitment Confirmation Date, the Master
Servicer shall determine if the aggregate Series 2000-1
Invested Amount for each VFC Purchaser Group (determined in U.S.
Dollars) exceeds the aggregate Series 2000-1 Adjusted
Commitment in relation to the Series 2000-1 APA Banks in such
VFC Purchaser Group (a “ VFC Excess Exposure
”). If a VFC Excess Exposure exists with respect to a
VFC Purchaser Group, the Master Servicer shall, on the relevant
Commitment Confirmation Date, make a Series 2000-1 Decrease in
an amount equal or greater than such VFC Excess Exposure with
respect only to such VFC Purchaser Group but otherwise in
accordance with Section 2.07(f) and the other
provisions of Section 2.07 which apply thereto pursuant
to Section 2.07(f) ; provided that this
Section 2.15 shall not affect or limit the ability
otherwise to initiate Series 2000-1 Decreases pursuant to
Section 2.07 .
SECTION 2.16
Allocations Among VFC Purchaser
Groups
Notwithstanding the other provisions of this
Supplement which provide that the Series 2000-1 Initial
Invested Amount, Series 2000-1 Increases and
Series 2000-1 Decreases be allocated among VFC Purchaser
Groups pro rata in accordance with the VFC Pro Rata Shares and VFC
Currency Pro Rata Shares (the “ Pro Rata Rules
”), the parties hereto acknowledge and agree that allocations
in accordance with the Pro Rata Rules may be impractical to
achieve
26
and agree that the Master Servicer shall take
reasonable efforts to comply with the Pro Rata
Rules requirements set forth in this Supplement subject to the
following conditions:
(i)
the Master
Servicer shall use reasonable efforts to allocate
Series 2000-1 Increases and Series 2000-1 Decreases among
the VFC Purchaser Groups in accordance with the Pro Rata
Rules but in any event shall not make any allocation after
which, giving effect thereto, any VFC Purchaser Group’s
Series 2000-1 Invested Amount would be more than $15,000,000
(or the U.S. Dollar equivalent of any other currency as determined
at the Spot Rate) above or below the Series 2000-1 Invested
Amount which would apply in accordance with the Pro Rata
Rules (an “ Excess
Deviation ”); provided that (1) if at any time
an Excess Deviation does exist with respect to a VFC Purchaser
Group, the Master Servicer shall within three (3) Business Days
after the date on which such Excess Deviation first occurred,
provide notice thereof to the Funding Agents, and upon receipt of a
request by any Funding Agent related to a VFC Purchaser Group with
respect to which such Excess Deviation exists, shall within three
(3) Business Days after such request, make a
Series 2000-1 Decrease in an amount which is sufficient to
eliminate such Excess Deviation with respect to such VFC Purchaser
Group; in accordance with Section 2.07(f) and the other provisions
of Section 2.07
which apply
thereto pursuant to Section 2.07(f) ; and (2) any VFC
Purchaser Group may waive the right to request a Series 2000-1
Decrease under this provision; and
(ii)
on each day upon
which any Series 2000-1 CP Tranche matures, the Master
Servicer shall initiate a Series 2000-1 Increase and/or a
Series 2000-1 Decrease which will be allocated among VFC
Purchaser Groups in a manner which is consistent with the Pro Rata
Rules so that after giving effect to such allocations the
Series 2000-1 Invested Amounts are allocated among the VFC
Purchaser Groups so that the Series 2000-1 Invested Amounts
are allocated approximately in accordance with the Pro Rata
Rules;
provided that it is understood that the Master Servicer
shall not be obliged to take actions to adjust the
Series 2000-1 Invested Amounts in accordance with the Pro Rata
Rules as required by the foregoing clauses (i)
and (ii) if the reason such adjustment is required is
due to the Series 2000-1 U.S. Dollar Invested Amount being in
amount which is not sufficient to allocate to the Dollar Only VFC
Purchaser Group in accordance with the Pro Rata Rules.
ARTICLE III
ARTICLE III OF THE
AGREEMENT
SECTION 3.01
Section 3.01 of the Pooling Agreement and each other section
of Article III of the Pooling Agreement relating to
another Series shall be read in its entirety as provided in
the Pooling Agreement. Article III of the Pooling
Agreement (except for Section 3.01 thereof and any
portion thereof relating to another Series) shall read in its
entirety as follows and shall be
27
exclusively applicable to the Series 2000-1
VFC Certificates and the Series 2000-1 Subordinated
Interests.
SECTION 3A.02
Establishment of Series 2000-1
Accounts.
(a)
On the
Transferred Business Effective Date, the Trustee shall cause to be
established and shall cause to be maintained in the name of the
Trustee, as Trustee, with an Eligible Institution, with respect to
the Series 2000-1 VFC Certificates:
(i)
(A) a
Concentration Account for Pound Sterling (the “
Series 2000-1 Pound Sterling
Concentration Account ”), (B) a
Concentration Account for Euro (the “ Series 2000-1 Euro Concentration
Account ”), and (C) a
Concentration Account for U.S. Dollar (the
“Series 2000-1 U.S. Dollar Concentration Account”
and, together with the Series 2000-1 Pound Sterling
Concentration Account and the Series 2000-1 Euro Concentration
Account, the “ Series 2000-1 Concentration Accounts
”);
(ii)
a series of
subaccounts of each Series 2000-1 Concentration Account
consisting of (A) a Principal Concentration Subaccount for
Pound Sterling (the “ Series 2000-1 Pound Sterling Principal
Concentration Subaccount ”), (B) a
Principal Concentration Subaccount for Euro (the “
Series 2000-1 Euro Principal
Concentration Subaccount ”), and (C) a
Principal Concentration Subaccount for U.S. Dollar (the
“ Series 2000-1
U.S. Dollar Principal Concentration Subaccount ” and, together with
the Series 2000-1 Pound Sterling Principal Concentration
Subaccount and the Series 2000-1 Euro Principal Concentration
Subaccount, the “ Series 2000-1 Principal Concentration
Subaccounts ”);
(iii)
a series of
subaccounts of each Series 2000-1 Concentration Account
consisting of (A) a Non-Principal Concentration Subaccount for
Pound Sterling (the “ Series 2000-1 Pound Sterling Non-Principal
Concentration Subaccount ”), (B) a Non-Principal
Concentration Subaccount for Euro (the “ Series 2000-1 Euro Non-Principal Concentration
Subaccount ”), and (C) a
Non-Principal Concentration Subaccount for U.S. Dollar (the
“ Series 2000-1
U.S. Dollar Non-Principal Concentration Subaccount
” and,
together with the Series 2000-1 Pound Sterling Non-Principal
Concentration Subaccount and the Series 2000-1 Euro
Non-Principal Concentration Subaccount, the “
Series 2000-1 Non-Principal
Concentration Subaccounts ”); and
(iv)
a further series
of subaccounts of each of the Series 2000-1 Non-Principal
Concentration Subaccounts consisting of (A) an Accrued
Interest Subaccount for Pound Sterling (the “
Series 2000-1 Pound Sterling
Accrued Interest Subaccount ”), (B) an
Accrued Interest Subaccount for Euro (the “
Series 2000-1 Euro Accrued
Interest Subaccount ”), and (C) an
Accrued Interest Subaccount for U.S. Dollar (the “
Series 2000-1 U.S. Dollar
Accrued Interest Subaccount ” and, together with
the Series 2000-1 Pound Sterling Accrued Interest
28
Subaccount and
the Series 2000-1 Euro Accrued Interest Subaccount, the
“ Series 2000-1
Accrued Interest Subaccounts ”).
All accounts established pursuant to
this Section 3A.02(a) and listed on Schedule II ,
are collectively referred to as the “ Series 2000-1
Accounts ”. Each Series 2000-1 Account shall
be under the sole dominion and control of the Trustee. The
beneficial interest in each Series 2000-1 Account shall be
solely and beneficially owned for the benefit of the
Series 2000-1 Purchasers, in each case in accordance with the
terms of the Transaction Documents and the records of the Trustee
shall bear a designation clearly indicating that the funds
deposited therein are so held for the benefit of the
Series 2000-1 Purchasers. The Trustee, on behalf of the
Trust for the benefit of the Series 2000-1 Purchasers, shall
possess all right, title and interest in all funds from time to
time on deposit in, and all Eligible Investments credited to, the
Series 2000-1 Accounts and in all proceeds thereof. The
Series 2000-1 Accounts shall be under the sole dominion and
control of the Trustee for the exclusive benefit of the
Series 2000-1 Purchasers.
The Trustee hereby appoints The Bank
of New York Mellon, and The Bank of New York Mellon hereby agrees
to act, as “securities intermediary” (as such term is
defined in Section 8-102(a)(14) of the UCC), for and on behalf
of the Trustee for the benefit of the Trust, with respect to, each
of the Series 2000-1 Accounts and the “security
entitlements” and “financial assets” (as each
such term is defined in the UCC) with respect thereto. The Bank of
New York Mellon in its capacity as securities intermediary with
respect to, each of the Series 2000-1 Accounts hereby confirms
and agrees that each of the Series 2000-1 Accounts is a
“securities account” (as defined in
Section 8-501(a) of the UCC). The Bank of New York
Mellon hereby further agrees with respect to each of the Series
2000-1 Account that: (x) the Trustee is the sole
“entitlement holder” (as such term in defined in
Section 8-102(a)(7) of the UCC) with respect to such accounts and
no other Person shall have the right to give “entitlement
orders” (as such term is defined in Section 8-102(a)(8)) with
respect to such accounts; and (y) each item of property (whether
investment property, financial asset, security, instrument or cash)
credited to such accounts shall be treated by it as a
“financial asset” within the meaning of
Section 8-102(a)(9) of the UCC. The Bank of New
York Mellon agrees to comply with entitlement orders, written
instructions or other instructions (for purposes of Sections 8-106
and 9-104 of the UCC) originated by the Trustee, without further
consent of the Company, directing disposition of funds in the
Series 2000-1 Accounts. The Trustee, the Company and The
Bank of New York Mellon hereby agree that notwithstanding any
choice of law or governing law otherwise applicable to the Company
Concentration Accounts, the Series 2000-1 Accounts, the State
of New York is the “securities intermediary’s
jurisdiction” for the purposes of Article 8 of the UCC
with respect to each of the Series 2000-1 Accounts.
(b)
All Eligible
Investments in the Series 2000-1 Accounts shall be held by the
Trustee, on behalf of the Trust, for the benefit of the
Series 2000-1 Purchasers. Funds on deposit in a
Series 2000-1 Account shall, at the written direction of the
Master Servicer, be invested by the Trustee in Eligible Investments
which
29
shall mature on
the Business Day prior to the date of the scheduled application of
such funds.
(c)
On any Business
Day, the Company may deposit funds from Collections only to the
subaccount of the General Reserve Account relating to
Series 2000-1. At the request of the Master Servicer, on
any Business Day the Trustee shall release to the Company any funds
on deposit in such subaccount so long and to the extent that
(i) the Series 2000-1 Allocated Receivables Amount is at
least equal to the sum of the Series 2000-1 Target Receivables
Amount for such day and (ii) the Company is not liable at such
time to make any other payment under the Pooling Agreement or this
Supplement (whether due at such time or on the next Distribution
Date).
(d)
On any Business
Day, the Master Servicer may, in accordance with
Section 2.06
of the Servicing
Agreement, deposit Servicer Advances into the appropriate currency
Series 2000-1 Principal Concentration Subaccount or
Series 2000-1 Non-Principal Concentration
Subaccount.
(e)
On each date on
which a FX Counterparty makes a payment to the Trustee pursuant to
a Series 2000-1 FX Hedging Agreement with respect to the
Series 2000-1 VFC Certificates, the Trustee shall deposit such
payment into the relevant Series 2000-1 Principal
Concentration Subaccount. On any Business Day on which the
Trustee is required to make a payment to such FX Counterparty
pursuant to a Series 2000-1 FX Hedging Agreement, the Trustee
may make such payment from funds available in the relevant
Series 2000-1 Principal Concentration Subaccount.
SECTION 3A.03
Daily Allocations.
(a)
The portion of
the Aggregate Daily Collections allocated to Series 2000-1
pursuant to Article III of the Pooling Agreement
shall be allocated as set forth in this Article III . The Master Servicer
shall determine such allocations in accordance with this
Article III and direct the Trustee to
make such allocations by delivering the Daily Report and the
Trustee shall allocate such amounts in accordance with the
instructions of the Master Servicer in the Daily Report (upon which
the Trustee may conclusively rely, subject to its obligation to
perform the procedures set forth in the Internal Operating
Procedures Memorandum) as follows:
(i)
first , during the
Series 2000-1 Amortization Period (if any) amounts are owed to
any Person on account of Servicing Fees incurred in respect of the
performance of its responsibilities as Successor Master Servicer,
an amount equal to the product of (a) the amount so owed to
such Successor Master Servicer and (b) a fraction, the
numerator of which shall be equal to the Series 2000-1
Invested Amount as of the end of the immediately preceding Accrual
Period and the denominator of which shall be equal to the Aggregate
Invested Amount as of the end of the immediately preceding Accrual
Period shall be transferred from the relevant Series 2000-1
Concentration Account to the relevant Series 2000-1
Non-Principal Concentration Subaccount in accordance with the
Account Currency Priority;
30
(ii)
second , on each Business Day,
following the transfers (if any) pursuant to clause (i) above, an amount equal to the
Series 2000-1 Accrued Expense Amount for such day (or, during
the Series 2000-1 Revolving Period, such greater amount as the
Master Servicer may request in writing) shall be transferred from
the relevant Series 2000-1 Concentration Account to the
relevant Series 2000-1 Non-Principal Concentration Subaccount
in accordance with the Account Currency Priority;
provided that:
(A)
on the tenth (10 th )
Business Day of each Accrual Period (and each Business Day
thereafter, if necessary, until the full amount of any positive
Series 2000-1 Accrued Expense Adjustment is
transferred),
(B)
on the day of any
Series 2000-1 Increase (and each Business Day thereafter, if
necessary, until the full amount of any positive Series 2000-1
Accrued Expense Adjustment is transferred),
(C)
on the day of any distribution
pursuant to Section 2.07 , and
(D)
on the last Business Day of each
Accrual Period,
an amount equal to the
Series 2000-1 Accrued Expense Adjustment shall, if such
adjustment is a positive amount, be transferred from the relevant
Series 2000-1 Concentration Account to the relevant
Series 2000-1 Non-Principal Concentration Subaccount in
accordance with the Account Currency Priority, or if such
adjustment is a negative amount, be transferred from the relevant
Series 2000-1 Non-Principal Concentration Subaccount to the
relevant Series 2000-1 Concentration Account with respect to
the same currency (or deducted from the transfer in respect of the
Series 2000-1 Accrued Expense Amount for such Business
Day);
(iii)
third , on each Business Day
(including Distribution Dates), following the transfers pursuant
to sub-clauses
(i) and (ii) above, any remaining funds
on deposit in the Series 2000-1 Concentration Accounts shall
be transferred by the Trustee to the relevant Series 2000-1
Principal Concentration Subaccounts with respect to the same
currency.
(b)
(i)
On each Business
Day during the Series 2000-1 Revolving Period (including
Distribution Dates), after giving effect to (x) all
allocations of Aggregate Daily Collections referred to in
subparagraphs (a)(i)
,
(a)(ii) and (a)(iii) on such Business Day and
(y) any deposit resulting from a Series 2000-1 Increase
(if any) pursuant to Section 2.05(d) on such Business Day, amounts
on deposit in the Series 2000-1 Principal Concentration
Subaccounts shall be distributed by the Trustee not later than
2:30 p.m. London time (but only to the extent that the Trustee
has received a Daily Report which reflects the receipt of the
Aggregate Daily Collections on deposit therein not later than
12:30 p.m. London time, upon which Daily Report the Trustee
may conclusively rely,
31
subject to its
obligation to perform the procedures set forth in the Internal
Operating Procedures Memorandum),
(A)
first , to distribute to the
account designated by the Master Servicer an amount equal to the
Outstanding Amount Advanced (if any) from the applicable
Series 2000-1 Principal Concentration Subaccount corresponding
to the Approved Currency in which the Master Servicer has made the
Servicer Advance;
(B)
second , to distribute amounts
payable with respect to reductions in the Series 2000-1
Invested Amount and Series 2000-1 Subordinated Interest Amount
in accordance with Section 2.07 ; and
(C)
third , any remaining balances in
the Series 2000-1 Principal Concentration Subaccounts shall be
transferred to the relevant Company Receipts Accounts in accordance
with directions contained in the Daily Report or to such accounts
or such Persons as the Master Servicer may direct in writing (which
directions may consist of standing instructions provided by the
Company that shall remain in effect until changed by the Company in
writing);
provided that (1) the distributions under
sub-clauses (A) and (C) shall be made
only if no Series 2000-1 Early Amortization Event, or
Potential Series 2000-1 Early Amortization Event or has
occurred and is continuing; and (2) distributions from the
Series 2000-1 Principal Concentration Subaccount for purposes
of sub-clause (C) above and Section 2.07
shall be made in accordance with the Account Currency
Priority.
(ii)
On each Business
Day during the Series 2000-1 Amortization Period (including
Distribution Dates), funds deposited in the Series 2000-1
Principal Concentration Subaccounts shall be invested in Eligible
Investments that mature on or prior to the Business Day immediately
preceding the next Distribution Date and shall be distributed on
such Distribution Date in accordance with Section 3A.06(c) . Except as set forth
in Section 3A.06(c) , no amounts on deposit in
any Series 2000-1 Principal Concentration Subaccount shall be
distributed by the Trustee to the Company or the owner of the
Series 2000-1 Subordinated Interests during the
Series 2000-1 Amortization Period; provided that amounts on deposit which
represent Collections received on Ineligible Receivables, may be
released to the Company subject to payment having been made by the
Company in respect of such Ineligible Receivables in accordance
with Section 2.05 of the Pooling Agreement
and/or (as the case may be) the Exchangeable Company Interests
having been reduced in accordance therewith and the Trustee having
received all relevant payments from the Company in connection with
the foregoing.
32
(c)
(i)
On each Business Day, an amount
equal to the Series 2000-1 Daily U.S. Dollar Interest Deposit
for such day shall be transferred by the Trustee, based solely on
the information provided to the Trustee by the Master Servicer in
the Daily Report (upon which the Trustee may conclusively rely,
subject to its obligation to perform the procedures set forth in
the Internal Operating Procedures Memorandum), from the relevant
Series 2000-1 Non-Principal Concentration Subaccount to the
relevant Series 2000-1 Accrued Interest Subaccount in
accordance with the Account Currency Priority. Amounts transferred
pursuant to sub-clauses (b)(1)(ii) and
(iii) of the Account Currency Priority shall be
converted into U.S. Dollars at the applicable currency Spot Rate
provided by the Paying Agent prior to any such transfer.
(ii)
On each Business
Day, an amount equal to the Series 2000-1 Daily Euro Interest
Deposit for such day shall be transferred by the Trustee, based
solely on the information provided to the Trustee by the Master
Servicer in the Daily Report (upon which the Trustee may
conclusively rely, subject to its obligation to perform the
procedures set forth in the Internal Operating Procedures
Memorandum), from the relevant Series 2000-1 Non-Principal
Concentration Subaccount to the relevant Series 2000-1 Accrued
Interest Subaccount in accordance with the Account Currency
Priority. Amounts transferred pursuant to sub-clauses (b)(2)(ii) and (iii) of the Account Currency
Priority shall be converted into Euro at the applicable currency
Spot Rate provided by the Paying Agent prior to any such
transfer.
(iii)
On each Business
Day, an amount equal to the Series 2000-1 Daily Sterling
Interest Deposit for such day shall be transferred by the Trustee,
based solely on the information provided to the Trustee by the
Master Servicer in the Daily Report (upon which the Trustee may
conclusively rely, subject to its obligation to perform the
procedures set forth in the Internal Operating Procedures
Memorandum), from the relevant Series 2000-1 Non-Principal
Concentration Subaccount to the relevant Series 2000-1 Accrued
Interest Subaccount in accordance with the Account Currency
Priority. Amounts transferred pursuant to sub-clauses (b)(3)(ii) and (iii) of the Account Currency
Priority shall be converted into Pounds Sterling at the applicable
currency Spot Rate provided by the Paying Agent prior to any such
transfer.
(d)
The allocations
to be made pursuant to this Section 3A.03 are subject to the provisions
of Sections 2.05
,
2.06 , 7.02 and 9.01 of the Pooling
Agreement.
SECTION 3A.04
Determination of
Interest.
The amount in respect of interest distributable
with respect to the Series 2000-1 VFC Certificates on each
Distribution Date for the Accrual Period then ending shall be
determined by the Master Servicer as follows:
(a)
(i)
(1) For the Series 2000-1
U.S. Dollar VFC Certificates, the amount of interest distributable
(“ Series 2000-1 U.S. Dollar Monthly
Interest
33
Distribution
”) on each Distribution Date
shall be the aggregate amount of Series 2000-1 Daily U.S.
Dollar Interest Expense accrued during the Accrual Period ending on
such Distribution Date, (2) for the Series 2000-1 Euro
VFC Certificates, the amount of interest distributable (“
Series 2000-1 Euro Monthly Interest Distribution
”) on each Distribution Date shall be the aggregate amount of
Series 2000-1 Daily Euro Interest Expense accrued during the
Accrual Period ending on such Distribution Date and (3) for
the Series 2000-1 Sterling VFC Certificates, the amount of
interest distributable (“ Series 2000-1 Sterling
Monthly Interest Distribution ”) on each Distribution
Date shall be the aggregate amount of Series 2000-1 Daily
Sterling Interest Expense accrued during the Accrual Period ending
on such Distribution Date.
(ii)
On or before the
first day of each Accrual Period or any other day (other than a
Distribution Date) upon which (x) a Series 2000-1
Increase is to occur in accordance with Section 2.05 or (y) the
Series 2000-1 Invested Amounts are to be reduced in accordance
with Section 2.07
, each Funding
Agent shall notify the Trustee and the Master Servicer of the
Series 2000-1 U.S. Dollar Certificate Rate applicable with
respect to the Series 2000-1 U.S. Dollar VFC Certificates, the
Series 2000-1 Euro Certificate Rate applicable with respect to
the Series 2000-1 Euro VFC Certificates and the
Series 2000-1 Sterling Certificate Rate applicable with
respect to the Series 2000-1 Sterling VFC Certificates for its
VFC Purchaser Group (and, if applicable, the CP Rate, Eurocurrency
Rate or ABR which applies and the Series 2000-1 U.S. Dollar
Invested Amount, the Series 2000-1 Euro Invested Amount and
Series 2000-1 Sterling Invested Amount as to which such rates
apply).
(iii)
If the
Series 2000-1 U.S. Dollar Certificate Rate applicable to any
Series 2000-1 U.S. Dollar VFC Certificate, the
Series 2000-1 Euro Certificate Rate applicable to any
Series 2000-1 Euro VFC Certificate or the Series 2000-1
Sterling Certificate Rate applicable to any Series 2000-1
Sterling VFC Certificate changes during any Accrual Period, the
Funding Agent with respect to the VFC Purchaser Group to which such
change applies shall notify the Trustee and the Master Servicer of
such changes. The parties to this Supplement hereby
acknowledge and agree that the Series 2000-1 CP Rate
determined with respect to any Series 2000-1 CP Tranche
represents an estimate of the expected rate that would apply to the
funding of such Series 2000-1 CP Tranche for the relevant
Series 2000-1 CP Rate Period. At least two
(2) Business Days prior to the last day of the Accrual Period,
the related Funding Agent shall notify the Trustee and the Master
Servicer of the actual rate and corresponding CP Costs for the
Accrual Period then ending.
(iv)
Following any
change in the amount of any Series 2000-1 Eurocurrency
Tranche, Series 2000-1 CP Tranche or Series 2000-1
Floating Tranche or the Series 2000-1 U.S. Dollar Certificate
Rate, Series 2000-1 Euro Certificate Rate or
Series 2000-1 Sterling
34
Certificate Rate
which applies to all or any portion thereof during an Accrual
Period:
(A)
the Series 2000-1 U.S. Dollar
Monthly Interest, Series 2000-1 Euro Monthly Interest or
Series 2000-1 Sterling Monthly Interest (as applicable) shall
be calculated with respect to such changed amount and/or changed
rate for the number of days in the Accrual Period during which such
changed amount is outstanding and/or changed rate is applicable;
and
(B)
the Master Servicer shall amend
the Monthly Settlement Report to reflect the adjustment in the
Series 2000-1 U.S. Dollar Monthly Interest, Series 2000-1
Euro Monthly Interest or Series 2000-1 Sterling Monthly
Interest for such Accrual Period caused by such change and any
consequent adjustments and the Master Servicer shall also provide
written notification to the Trustee of any such change in the
Series 2000-1 U.S. Dollar Certificate Rate, the
Series 2000-1 Euro Certificate Rate or the Series 2000-1
Sterling Certificate Rate.
(C)
Any amendment to the Monthly
Settlement Report pursuant to this
Section 3A.04(a)(iv) shall be completed by 1:00 p.m. London
time, on the next Settlement Report Date.
(b)
(i)
On each
Distribution Date, the Master Servicer shall determine the excess,
if any (the “ Series 2000-1 U.S. Dollar Interest
Shortfall ”), of (i) the
aggregate Series 2000-1 U.S. Dollar Monthly Interest
Distribution for the Accrual Period ending on such Distribution
Date over (ii) the sum of (A) the amount that will be
available to be distributed to the Series 2000-1 Purchasers on
such Distribution Date in respect thereof pursuant to
Sections 3A.03 and 3A.06(a) and (B) the amount of
Servicer Advances (if any) made by the Master Servicer pursuant
to Section 2.06
of the Servicing
Agreement and Section 3A.02(d) for purposes
of
paying the
Series 2000-1 U.S. Dollar Monthly Interest Distribution for
such Accrual Period. If the Series 2000-1 U.S. Dollar
Interest Shortfall with respect to any Distribution Date is greater
than zero, an additional amount (“ Series 2000-1 U.S. Dollar Additional
Interest ”) equal to the
product of (A) the number of days until such
Series 2000-1 U.S. Dollar Interest Shortfall shall be
repaid divided by
365 (or 366, as
the case may be), (B) the ABR plus 3.50% and (C) such
Series 2000-1 U.S. Dollar Interest Shortfall that has not been
paid to the Series 2000-1 Purchasers shall be payable as
provided herein with respect to the Series 2000-1 U.S. Dollar
VFC Certificates on each Distribution Date following such
Distribution Date to but excluding the Distribution Date on which
such Series 2000-1 U.S. Dollar Interest Shortfall is paid to
the Series 2000-1 U.S. Dollar VFC
Certificateholders.
(ii)
On each
Distribution Date, the Master Servicer shall determine the excess,
if any (the “ Series 2000-1 Euro Interest
Shortfall ”), of (i) the
aggregate Series 2000-1 Euro Monthly Interest Distribution for
the
35
Accrual Period
ending on such Distribution Date over (ii) the sum of
(A) the amount that will be available to be distributed to the
Series 2000-1 Purchasers on such Distribution Date in respect
thereof pursuant to Sections
3A.03 and 3A.06(a) and (B) the amount of
Servicer Advances (if any) made by the Master Servicer pursuant
to Section 2.06
of the Servicing
Agreement and Section 3A.02(d) for purposes of paying the
Series 2000-1 Euro Monthly Interest Distribution for such
Accrual Period. If the Series 2000-1 Euro Interest
Shortfall with respect to any Distribution Date is greater than
zero, an additional amount (“ Series 2000-1 Euro Additional
Interest ”) equal to the product
of (A) the number of days until such Series 2000-1 Euro
Interest Shortfall shall be repaid divided by 365 (or 366, as the case may
be), (B) the ABR plus 3.50% and (C) such
Series 2000-1 Euro Interest Shortfall that has not been paid
to the Series 2000-1 Purchasers shall be payable as provided
herein with respect to the Series 2000-1 Euro VFC Certificates
on each Distribution Date following such Distribution Date to but
excluding the Distribution Date on which such Series 2000-1
Euro Interest Shortfall is paid to the Series 2000-1 Euro VFC
Certificateholders.
(iii)
On each
Distribution Date, the Master Servicer shall determine the excess,
if any (the “ Series 2000-1 Sterling Interest
Shortfall ”), of (i) the
aggregate Series 2000-1 Sterling Monthly Interest Distribution
for the Accrual Period ending on such Distribution Date over
(ii) the sum of (A) the amount that will be available to
be distributed to the Series 2000-1 Purchasers on such
Distribution Date in respect thereof pursuant to
Sections 3A.03 and 3A.06(a) and (B) the amount of
Servicer Advances (if any) made by the Master Servicer pursuant
to Section 2.06
of the Servicing
Agreement and Section 3A.02(d) for purposes of paying the
Series 2000-1 Sterling Monthly Interest Distribution for such
Accrual Period. If the Series 2000-1 Sterling Interest
Shortfall with respect to any Distribution Date is greater than
zero, an additional amount (“ Series 2000-1 Sterling Additional
Interest ”) equal to the product
of (A) the number of days until such Series 2000-1
Sterling Interest Shortfall shall be repaid divided by 365 (or 366, as the case may
be), (B) the ABR plus
3.50% and
(C) such Series 2000-1 Sterling Interest Shortfall that
has not been paid to the Series 2000-1 Purchasers shall be payable
as provided herein with respect to the Series 2000-1 Sterling
VFC Certificates on each Distribution Date following such
Distribution Date to but excluding the Distribution Date on which
such Series 2000-1 Sterling Interest Shortfall is paid to the
Series 2000-1 Sterling VFC Certificateholders.
(c)
On any Business
Day, the Master Servicer may, with respect to any VFC Purchaser
Group and subject to Section 3A.04(d) , elect to allocate all or
any portion of the Series 2000-1 Available Pricing
Amount:
(i)
prior to a
Conduit Purchaser Termination Event with respect to the related
Series 2000-1 Conduit Purchaser, to a Series 2000-1 CP
Tranche commencing on such Business Day by giving the
36
Administrative
Agent and each Funding Agent irrevocable written or telephonic
(confirmed in writing) notice thereof, which notice must be
received by the Funding Agents prior to 7:00 a.m. New York
City time, three (3) Business Days (or if such notice relates
to the Series 2000-1 Purchaser U.S. Dollar Investment Amount,
two (2) Business Days) prior to such Business Day (
provided that the selection of
Series 2000-1 CP Tranches shall be at the sole discretion of
the related Funding Agents); or
(ii)
(x) on or
after the occurrence of a Conduit Purchaser Termination Event or
Series 2000-1 Purchase Date with respect to the related
Conduit Purchaser, to one or more Series 2000-1 Eurocurrency
Tranches by reference to the ABR by giving the Administrative Agent
and the Funding Agents irrevocable written or telephonic (confirmed
in writing) notice, thereof, which notice must be received prior to
7:00 a.m. New York City time on such Business Day, or
(y) on or after the occurrence of a Conduit Purchaser
Termination Event with respect to the related Conduit Purchaser or
Series 2000-1 Purchase Date with respect to the related
Conduit Purchaser, to one or more Series 2000-1 Eurocurrency
Tranches with Series 2000-1 Eurocurrency Periods commencing on
such Business Day by giving the Administrative Agent and the
Funding Agents irrevocable written or telephonic (confirmed in
writing) notice thereof, which notice must be received by the
Funding Agents prior to 7:00 a.m. New York City time, three
(3) Business Days prior to such Business Day.
Each such notice shall specify
(A) the applicable Business Day, (B) the currency of the
Series 2000-1 Available Pricing Amount with respect to such
allocation, (C) the Series 2000-1 Available Pricing
Amount that shall be allocable to any Series 2000-1 CP Tranche
and (D) the Series 2000-1 Eurocurrency Period and the
portion of the Series 2000-1 Available Pricing Amount being
allocated to each Series 2000-1 Eurocurrency Tranche (if
any). On or after any Series 2000-1 Purchase Date with
respect to a VFC Purchaser Group, each Funding Agent shall notify
the related Series 2000-1 APA Banks of the contents of each
such notice promptly upon receipt thereof. So long as no
Conduit Purchaser Termination Event has occurred with respect to
any of the Series 2000-1 Conduit Purchasers, the allocation of
Series 2000-1 Available Pricing Amount in a specified currency
to Series 2000-1 CP Tranches shall be allocated as among the
Series 2000-1 Conduit Purchasers pro rata based on
their VFC Currency Pro Rata Share with respect to such specified
currency.
(d)
Notwithstanding
anything to the contrary contained in this Section 3A.04 :
(i)
if a
Series 2000-1 Conduit Purchaser holds a Series 2000-1
Purchaser Invested Amount, such Series 2000-1 Conduit
Purchaser shall approve the portion of the Series 2000-1
Invested Amount funded by it which is to be allocated to
Series 2000-1 CP Tranches; and
(ii)
if a
Series 2000-1 APA Bank holds a Series 2000-1 Purchaser
Invested Amount:
37
(A)
the portion of the
Series 2000-1 Purchaser Invested Amount with respect to such
Series 2000-1 APA Bank allocable to each Series 2000-1
Eurocurrency Tranche must be in an amount equal to 500,000 units of
the currency applicable for such Series 2000-1 Eurocurrency
Tranche or an integral multiple of 500,000 units of the currency
applicable for such Series 2000-1 Eurocurrency Tranche in
excess thereof;
(B)
no more than five
Series 2000-1 Eurocurrency Tranches shall be outstanding at
any one time with respect to any VFC Purchaser Group;
(C)
after the occurrence and during
the continuance of any Series 2000-1 Early Amortization Event
or Potential Series 2000-1 Early Amortization Event, each
Funding Agent may choose to allocate any portion of the
Series 2000-1 Available Pricing Amount with respect to its VFC
Purchaser Group to a Series 2000-1 Eurocurrency Tranche or
Series 2000-1 Floating Rate Tranche; and
(D)
after the end of the
Series 2000-1 Revolving Period, the Company (or the Master
Servicer on behalf of the Company) may not select any
Series 2000-1 Eurocurrency Period that does not end on or
prior to the next succeeding Distribution Date.
SECTION 3A.05
Determination of
Series 2000-1 Monthly Principal.
(a)
Payments of Series 2000-1
Principal . The amount of
principal in respect of the Series 2000-1 U.S. Dollar VFC
Certificates (the “ Series 2000-1 U.S. Dollar Monthly Principal
Payment ”), the amount of
principal in respect of the Series 2000-1 Euro VFC
Certificates (the “ Series 2000-1 Euro Monthly Principal
Payment ”) and the amount of
principal in respect of the Series 2000-1 Sterling VFC
Certificates (the “ Series 2000-1 Sterling Monthly Principal
Payment ”) distributable from
the Series 2000-1 Principal Concentration Subaccounts on each
Distribution Date during the Series 2000-1 Amortization Period
shall be equal to the amount on deposit in such subaccounts on the
immediately preceding Settlement Report Date after giving effect to
any payments which in accordance with Section 3A.02(e) are to be received from or
are required to be made to the FX Counterparty pursuant to any
Series 2000-1 FX Hedging Agreements with respect to the
Series 2000-1 VFC Certificates; provided , however , that the Series 2000-1
U.S. Dollar Monthly Principal Payment, the Series 2000-1 Euro
Monthly Principal Payment and the Series 2000-1 Sterling
Monthly Principal Payment on any Distribution Date shall not exceed
the Series 2000-1 U.S. Dollar Invested Amount, the
Series 2000-1 Euro Invested Amount and the Series 2000-1
Sterling Invested Amount, respectively, on such Distribution Date
after giving effect to the reductions and increases pursuant
to paragraphs
(b) and (c) below. Further, on any
other Business Day during the Series 2000-1 Amortization
Period, funds shall be distributed from the
Series 2000-1
38
Principal
Concentration Subaccounts to the Series 2000-1 VFC
Certificateholders in accordance with Section 2.07 of this
Supplement.
(b)
Reductions to Series 2000-1
Principal . If, on any Special
Allocation Settlement Report Date, the Series 2000-1 Allocable
Charged-Off Amount is greater than zero for the related Settlement
Period, the Trustee shall (in accordance with the written
directions of the Master Servicer provided in accordance
with Section 3.01(b)(ii)
of the Pooling
Agreement, upon which the Trustee may conclusively rely, subject to
its obligation to perform the procedures set forth in the Internal
Operating Procedures Memorandum) make the following applications of
such amount in the following order of priority:
(i)
first , the Series 2000-1
Required Subordinated Amount shall be reduced (but not below zero)
by an amount equal to the Series 2000-1 Allocable Charged-Off
Amount (which shall be reduced by the amount so applied);
and
(ii)
second, to the extent that the
Series 2000-1 Allocable Charged-Off Amount is greater than
zero following the applications in clause (i) above, the
Series 2000-1 U.S. Dollar Invested Amount, the
Series 2000-1 Euro Invested Amount and the Series 2000-1
Sterling Invested Amount shall be reduced pro rata (but not
below zero) by such remaining Series 2000-1 Allocable
Charged-Off Amount (which shall be reduced by the amount so
applied) and such reduction shall be allocated to the
Series 2000-1 Purchaser U.S. Dollar Invested Amount, the
Series 2000-1 Purchaser Euro Invested Amount and the
Series 2000-1 Purchaser Sterling Invested Amount pro
rata based on the amount each of the Series 2000-1
Purchaser U.S. Dollar Invested Amount, Series 2000-1 Purchaser
Euro Invested Amount and/or Series 2000-1 Purchaser Sterling
Invested Amount (as applicable) represents of the aggregate
Series 2000-1 Invested Amount.
(c)
Increases to Series 2000-1
Principal . If, on any Special
Allocation Settlement Report Date, the Series 2000-1 Allocable
Recoveries Amount is greater than zero for the related Settlement
Period, the Trustee shall (in accordance with written directions
from the Master Servicer upon which the Trustee may conclusively
rely, subject to its obligation to perform the procedures set forth
in the Internal Operating Procedures Memorandum) make the following
applications (after giving effect to the applications in
Section 3A.05(b)
of such amount in
the following order of priority):
(i)
first , the Series 2000-1
U.S. Dollar Invested Amount, the Series 2000-1 Euro Invested
Amount and the Series 2000-1 Sterling Invested Amount shall be
increased (but only to the extent of any previous reductions of the
Series 2000-1 U.S. Dollar Invested Amount, the
Series 2000-1 Euro Invested Amount and the Series 2000-1
Sterling Invested Amount pursuant to Section 3A.05(b)(ii) ) by the amount of the
Series 2000-1 Allocable Recoveries Amount (which shall be
reduced by the amount so applied) and such increase shall be
allocated to the Series 2000-1 Purchaser U.S. Dollar Invested
Amount, the Series 2000-1 Purchaser Euro Invested Amount and
the Series 2000-1
39
Purchaser
Sterling Invested Amount pro rata based on the amount each
of the Series 2000-1 Purchaser U.S. Dollar Invested Amount,
Series 2000-1 Purchaser Euro Invested Amount and/or
Series 2000-1 Purchaser Sterling Invested Amount (as
applicable) represents of the aggregate Series 2000-1 Invested
Amount; and
(ii)
second , to the extent that the
Series 2000-1 Allocable Recoveries Amount is greater than zero
following the applications in clause (i) above, the
Series 2000-1 Required Subordinated Amount shall be increased
(but only to the extent of any previous reductions of the
Series 2000-1 Required Subordinated Amount pursuant to
Section 3A.05(b)(i)
) by such
remaining Series 2000-1 Allocable Recoveries Amount (which
shall be reduced by the amount so applied).
SECTION 3A.06
Applications.
(a)
Series 2000-1 Accrued Interest
Subaccounts.
The Trustee shall distribute to the
Paying Agent, based solely on the information provided to the
Trustee by the Master Servicer in the Daily Report (upon which the
Trustee may conclusively rely, subject to its obligation to perform
the procedures set forth in the Internal Operating Procedures
Memorandum), on each Distribution Date, from amounts on deposit in
the Series 2000-1 Accrued Interest Subaccounts in accordance
with the Account Currency Priority:
(i)
an amount equal to the Outstanding
Amount Advanced with respect to Series 2000-1 (if any), to the
account designated by the Master Servicer pursuant to
Section 3A.02(d) ; and
(ii)
pro rata :
(x)
for the Series 2000-1 U.S.
Dollar VFC Certificates, an amount equal to the Series 2000-1
U.S. Dollar Monthly Interest Distribution payable on such
Distribution Date (such amount, the “ Series 2000-1
U.S. Dollar Monthly Interest Payment ”), plus the
amount of any Series 2000-1 U.S. Dollar Monthly Interest
Payment previously due but not distributed to the
Series 2000-1 Purchasers on a prior Distribution Date,
plus the amount of any Series 2000-1 U.S. Dollar
Additional Interest for such Distribution Date and any
Series 2000-1 U.S. Dollar Additional Interest previously due
but not distributed to the applicable Series 2000-1 Purchasers
on a prior Distribution Date;
(y)
for the Series 2000-1 Euro VFC
Certificates, an amount equal to the Series 2000-1 Euro
Monthly Interest Distribution payable on such Distribution Date
(such amount, the “ Series 2000-1 Euro Monthly
Interest Payment ”), plus the amount of any
Series 2000-1 Euro Monthly Interest Payment previously due but
not distributed to the Series 2000-1 Purchasers on a prior
Distribution Date, plus the amount of any Series 2000-1
Euro Additional Interest for such Distribution Date and any
Series 2000-1 Euro Additional Interest previously
due
40
but not distributed to the
applicable Series 2000-1 Purchasers on a prior Distribution
Date; and
(z)
for the Series 2000-1 Sterling
VFC Certificates, an amount equal to the Series 2000-1
Sterling Monthly Interest Distribution payable on such Distribution
Date (such amount, the “ Series 2000-1 Sterling
Monthly Interest Payment ”), plus the amount of
any Series 2000-1 Sterling Monthly Interest Payment previously
due but not distributed to the Series 2000-1 Purchasers on a
prior Distribution Date, plus the amount of any
Series 2000-1 Sterling Additional Interest for such
Distribution Date and any Series 2000-1 Sterling Additional
Interest previously due but not distributed to the applicable
Series 2000-1 Purchasers on a prior Distribution
Date.
(b)
Series 2000-1 Non-Principal
Concentration Subaccounts.
On each Distribution Date, the
Trustee shall, based solely on the information provided to the
Trustee by the Master Servicer in the Daily Report (upon which the
Trustee may conclusively rely, subject to its obligation to perform
the procedures set forth in the Internal Operating Procedures
Memorandum), apply funds on deposit in the Series 2000-1
Non-Principal Concentration Subaccounts in the following order of
priority to the extent funds are available:
(i)
first , an amount equal to the
Series 2000-1 Monthly Servicing Fee for the Accrual Period
ending on such Distribution Date shall be withdrawn by the Trustee
and paid to the Master Servicer ( less any amounts payable to the
Trustee pursuant to Section 8.05 of the Pooling Agreement,
which shall be paid to the Trustee) from the Series 2000-1
Non-Principal Concentration Subaccounts in accordance with the
Account Currency Priority (amounts paid pursuant to
sub-clauses (b)(1)(ii)
or
(iii) of the Account Currency
Priority shall be converted to U.S. Dollars at the applicable
currency Spot Rate provided by the Paying Agent);
(ii)
second , (following the
applications in clause
(i) , an
amount equal to any Series 2000-1 Program Costs due and
payable shall be withdrawn by the Trustee and paid to the Persons
owed such amounts from the Series 2000-1 Non-Principal
Concentration Subaccounts in accordance with the Account Currency
Priority; and
(iii)
third , any remaining amounts on
deposit in the Series 2000-1 Non-Principal Concentration
Subaccounts (in excess of the Series 2000-1 Accrued Expense
Amount as of such Distribution Date) not allocated pursuant
to clauses (i)
and
(ii) above shall be paid to the
holder of the Series 2000-1 Subordinated Interests;
provided , however , that during the
Series 2000-1 Amortization Period, such remaining amounts
shall be deposited in the relevant Series 2000-1 Principal
Concentration Subaccount for distribution in accordance with
Section 3A.06(c)
.
41
(c)
Series 2000-1 Amortization
Period - Series 2000-1 Principal Concentration
Subaccounts.
During (x) the
Series 2000-1 Amortization Period and (y) during any
period following the occurrence of the Series 2000-1 Optional
Termination Date and ending on the Series 2000-1 Optional
Termination Final Distribution Date (as applicable), the Trustee
shall, based solely on the information provided to the Trustee by
the Master Servicer in the Daily Report (upon which the Trustee may
conclusively rely, subject to its obligation to perform the
procedures set forth in the Internal Operating Procedures
Memorandum), apply, on each Distribution Date, amounts on deposit
in the Series 2000-1 Principal Concentration Subaccounts in
the following order of priority:
(i)
first , an amount equal to the
Outstanding Amount Advanced with respect to the Series 2000-1
(if any) shall be distributed from the applicable
Series 2000-1 Principal Subaccount corresponding to the
Approved Currency in which the Master Servicer has made the
Servicer Advance to the account designated by the Master Servicer
pursuant to Section 3A.02(d) ;
(ii)
second , an amount equal to the
Series 2000-1 U.S. Dollar Monthly Principal Payment, the
Series 2000-1 Euro Monthly Principal Payment and the
Series 2000-1 Sterling Monthly Principal Payment for such
Distribution Date shall be distributed to the Paying Agent, on
behalf of the Series 2000-1 Purchasers, from the
Series 2000-1 Principal Concentration Subaccounts in
accordance with the Account Currency Priority pro rata to
the Series 2000-1 U.S. Dollar VFC Certificateholders, the
Series 2000-1 Euro VFC Certificateholders and the
Series 2000-1 Sterling VFC Certificateholders in reduction (to
zero) of the Series 2000-1 U.S. Dollar Invested Amount, the
Series 2000-1 Euro Invested Amount and the Series 2000-1
Sterling Invested Amount, respectively;
(iii)
third , if, following the payment
in full of all amounts set forth in clauses (i) and (ii) above, any amounts are owed
to the Trustee or the Series 2000-1 Purchasers, such amounts
shall be transferred to pay the Trustee or the Paying Agent, on
behalf of the Series 2000-1 Purchasers, as the case may be,
from the Series 2000-1 Principal Concentration Subaccounts in
accordance with the Account Currency Priority; and
(iv)
fourth , following the payment in
full of all amounts set forth in clauses (i), (ii) and (iii) above, the remaining (if any)
amounts on deposit in the Series 2000-1 Principal
Concentration Subaccounts on such Distribution Date shall be
distributed to the Company, as holder of the Series 2000-1
Subordinated Interests.
Notwithstanding
the foregoing, during the Amortization Period the Administrative
Agent may, at the direction of the Funding Agents representing
66- 2 / 3 % or more of the
Series 2000-1 Invested Amount, apply (or direct the Paying
Agent to apply) amounts on deposit in the Series 2000-1
Principal
42
Concentration
Accounts as between the Series 2000-1 Euro VFC Certificates,
Series 2000-1 Sterling VFC Certificates and the
Series 2000-1 U.S. Dollar VFC Certificates taking into account
prevailing exchange rates in order to maximize payments in respect
of the Series 2000-1 Euro Invested Amount, Series 2000-1
Sterling Invested Amount and the Series 2000-1 U.S. Dollar
Invested Amount; provided that such application by the
Administrative Agent, at the direction of the Funding Agents, shall
be made on an equitable basis taking into account the outstanding
Series 2000-1 Invested Amount in respect of each VFC Purchaser
Group.
ARTICLE IV
DISTRIBUTIONS AND
REPORTS
Article IV
of the Pooling Agreement (except for
any portion thereof relating to another Series) shall read in its
entirety as follows and the following shall be exclusively
applicable to the Series 2000-1 VFC Certificate issued
pursuant to this Supplement:
SECTION 4A.01
Distributions.
(a)
On each
Distribution Date, the Trustee shall distribute to each Funding
Agent with respect to its VFC Purchaser Group from the accounts
indicated in Article III the aggregate amount to be
distributed to all Series 2000-1 Purchasers pursuant to
Article III . Each Funding Agent
shall distribute to each related Series 2000-1 Purchaser to
which such amounts are owed its pro rata share of such
amounts based upon the Series 2000-1 Invested Amount at such
time owned by each Series 2000-1 Purchaser in such Funding
Agent’s VFC Purchaser Group or as is otherwise required by
this Supplement, the applicable Series 2000-1 Asset Purchase
Agreement or related agreements.
(b)
All allocations
and distributions hereunder shall be in accordance with the Daily
Report and the Monthly Settlement Report and shall be made in
accordance with the provisions of Section 11.04 and subject to
Section 3.01(i)
of the Pooling
Agreement.
(c)
All distributions
which pursuant to Section 3A.06 , are to be made pro
rata as between the Series 2000-1 U.S. Dollar VFC
Certificates, the Series 2000-1 Sterling VFC Certificates and
the Series 2000-1 Euro VFC Certificates shall be determined
pro rata based on the Series 2000-1 Invested Amount of
the Series 2000-1 U.S. Dollar VFC Certificates, the
Series 2000-1 Sterling VFC Certificates and the
Series 2000-1 Euro VFC Certificates (determined with respect
to Series 2000-1 VFC Certificates not denominated in U.S.
Dollars in U.S. Dollars at the Spot Rate as determined on the
Business Day immediately preceding the relevant
distribution).
(d)
For purposes of
clarification, the Account Currency Priority shall not affect the
determination of the respective priority or amounts to be paid with
respect to the Series 2000-1 VFC Certificates denominated in
different currencies but rather determines the priority of the
source of funds to be applied to the amounts that are to be
distributed with respect to the Series 2000-1 VFC Certificates
denominated in a specific currency.
43
SECTION 4A.02
Daily Reports.
The Master Servicer shall provide each Funding
Agent, the Trustee and the Liquidation Servicer with a Daily Report
in accordance with Section 4.01 of the Servicing
Agreement and substantially in the form of Exhibit D to
this Supplement, together with a copy of the Purchase Documents
relating to each transfer occurring pursuant to the Receivables
Purchase Agreements on such Business Day. Each Funding Agent
shall make copies of the Daily Report available to its related
Series 2000-1 Purchasers, upon reasonable request, at such
Funding Agent’s office at its address as specified from time
to time in accordance with Section 11.09 .
SECTION 4A.03
Reports and Notices.
(a)
Monthly Settlement Reports
. On each
Settlement Report Date, the Master Servicer shall deliver to the
Trustee, each Funding Agent and the Liquidation Servicer a Monthly
Settlement Report in the Form of Exhibit E to this Supplement setting
forth, among other things, the Series 2000-1 Loss Reserve
Ratio, the Series 2000-1 Dilution Reserve Ratio, the
Series 2000-1 Minimum Ratio, the Series 2000-1 Ratio, the
Series 2000-1 U.S. Dollar Monthly Interest, the
Series 2000-1 Euro Monthly Interest, the Series 2000-1
Sterling Monthly Interest, the Series 2000-1 U.S. Dollar
Additional Interest, the Series 2000-1 Euro Additional
Interest, the Series 2000-1 Sterling Additional Interest, the
Series 2000-1 Carrying Cost Reserve Ratio, the Servicing
Reserve Ratio, the Series 2000-1 Monthly Servicing Fee, the
Series 2000-1 U.S. Dollar Monthly Principal Payment, the
Series 2000-1 Euro Monthly Principal Payment, the
Series 2000-1 Sterling Monthly Principal Payment, the Servicer
Advances made by the Master Servicer during the related Settlement
Period, and Outstanding Amount Advanced as of the end of the
related Settlement Period, each as recalculated taking into account
the immediately preceding Settlement Period and to be applied for
the period commencing on (and including) such Settlement Report
Date and ending on (and not including) the next succeeding
Settlement Report Date. Each Funding Agent shall forward a
copy of each Monthly Settlement Report to any of its related
Series 2000-1 Purchasers upon request by any such
Series 2000-1 Purchaser.
(b)
Annual Certificateholders’ Tax
Statement . On or before
January 31 of each calendar year (or such earlier date as
required by applicable law), the Master Servicer on behalf of the
Trustee shall furnish, or cause to be furnished, to each Person who
at any time during the preceding calendar year was a
Series 2000-1 Purchaser, a statement prepared by the Master
Servicer containing the aggregate amount distributed to such Person
for such preceding calendar year or the applicable portion thereof
during which such Person was a Series 2000-1 Purchaser,
together with such other information as is required to be provided
by an issuer of indebtedness under the Code and such other
customary information as the Master Servicer deems necessary to
enable the Series 2000-1 Purchasers to prepare their tax
returns. Such obligation of the Master Servicer shall be
deemed to have been satisfied to the extent that substantially
comparable information shall have been provided by the Trustee, the
related Funding Agent or the Master Servicer pursuant to any
requirements of the Code as from time to time in effect. Tax
returns for the Trust shall be prepared by the Company (or the
Master Servicer on its behalf) in accordance
44
with
Section 8.11
of the Pooling
Agreement and the Trustee shall be under no obligation to prepare
tax returns for the Trust.
(c)
Series 2000-1 Early
Amortization Event/Distribution of Principal Notices
. Upon the
Company or the Master Servicer obtaining actual knowledge of the
occurrence of a Series 2000-1 Early Amortization Event or
Potential Series 2000-1 Early Amortization Event, the Master
Servicer shall give prompt written notice thereof to the Trustee,
the Liquidation Servicer, the Administrative Agent and to each
Funding Agent. As promptly as reasonably practicable after
its receipt of notice of the occurrence of a Series 2000-1
Early Amortization Event, each Funding Agent shall give notice to
each related Series 2000-1 Purchaser. In addition, on
the Business Day preceding each day on which a distribution of
principal is to be made during the Series 2000-1 Amortization
Period, the Master Servicer shall direct each Funding Agent (with a
copy to the Administrative Agent) to send notice to each related
Series 2000-1 Purchaser, which notice shall set forth the
amount of principal to be distributed on the related date to each
Series 2000-1 Purchaser with respect to the outstanding
Series 2000-1 VFC Certificates.
ARTICLE V
ADDITIONAL SERIES 2000-1 EARLY
AMORTIZATION EVENTS
SECTION 5.01
Additional Series 2000-1 Early
Amortization Events.
If any one of: (I) the events specified in
Section 7.01 of the Pooling Agreement or (II) the
following events (each, a “ Series 2000-1 Early
Amortization Event ”), shall occur, in each case after
giving effect to the lapse of any grace period, the giving of any
notice or making of any determination applicable
thereto:
(a)
(i)
failure on the
part of the Master Servicer to direct any payment or deposit to be
made, or failure of any payment or deposit to be made, in respect
of amounts owing on (A) any Series 2000-1 U.S. Dollar VFC
Certificate in respect of Series 2000-1 Daily U.S. Dollar
Interest Expense or Series 2000-1 Daily U.S. Dollar Interest
Deposit (or amounts derived from either of them), (B) any
Series 2000-1 Euro VFC Certificate in respect of
Series 2000-1 Daily Euro Interest Expense or
Series 2000-1 Daily Euro Interest Deposit (or amounts derived
from either of them), (C) any Series 2000-1 Sterling VFC
Certificate in respect of Series 2000-1 Daily Sterling
Interest Expense or Series 2000-1 Daily Sterling Interest
Deposit (or amounts derived from either of them) or (D) the
Series 2000-1 Unused Fee or Series 2000-1 Utilization
Fee, in each case within one (1) Business Day of the date such
interest or Series 2000-1 Unused Fee or Series 2000-1
Utilization Fee is due;
(ii)
failure on the
part of the Master Servicer to direct any payment or deposit to be
made in respect of any other amount owing on the Series 2000-1
VFC Certificates within one (1) Business Day of the date such
amount is due or such deposit is required to be made;
or
45
(iii)
failure on the
part of the Master Servicer to direct any payment or deposit to be
made, or of the Company to make any payment or deposit in respect
of any other amounts owing by the Company, under any Pooling and
Servicing Agreement to or for the benefit of any of the
Series 2000-1 Purchasers within two (2) Business Days of the
date such amount is due or such deposit is required to be
made;
provided , however , that no Series 2000-1
Early Amortization shall exist if such failure is directly
attributable to a Trustee Force Majeure Delay;
(b)
failure on the
part of the Company duly to observe or perform in any material
respect any covenant or agreement of the Company set forth in any
Pooling and Servicing Agreement (including each covenant contained
in Sections 2.07
and
2.08 of the Pooling Agreement)
that continues unremedied fifteen (15) Business Days after the
earlier of (i) the date on which a Responsible Officer of the
Company or a Responsible Officer of the Master Servicer has
knowledge of such failure and (ii) the date on which written
notice of such failure, requiring the same to be remedied, shall
have been given to the Company by the Trustee, or to the Company
and the Trustee by the Administrative Agent at the direction of the
Series 2000-1 Majority Purchasers;
(c)
any
representation or warranty made or deemed made by the Company in
any Pooling and Servicing Agreement to or for the benefit of the
Series 2000-1 Purchasers shall prove to have been incorrect in
any material respect when made or when deemed made that continues
to be incorrect fifteen (15) Business Days after the earlier of
(i) the date on which a Responsible Officer of the Company or
a Responsible Officer of the Master Servicer has knowledge of such
failure and (ii) the date on which notice of such failure,
requiring the same to be remedied, shall have been given to the
Company by the Trustee or to the Company and the Trustee by the
Administrative Agent at the direction of the Series 2000-1
Majority Purchasers and as a result of such incorrectness, the
interests, rights or remedies of the Series 2000-1 Purchasers
have been materially and adversely affected;
(d)
a Master Servicer
Default shall have occurred and be continuing;
(e)
a Program
Termination Event shall have occurred and be continuing with
respect to any Originator; provided , however , that the Administrative
Agent acting at the direction of all Series 2000-1 Purchasers
may waive any such event, as determined in the sole discretion of
the Series 2000-1 Purchasers;
(f)
any of the
Pooling Agreement, the Servicing Agreement, this Supplement or the
Origination Agreements shall cease, for any reason, to be in full
force and effect, or the Company, the Master Servicer, an
Originator or any Affiliate of any of the foregoing, shall so
assert in writing;
(g)
the Trust shall
for any reason cease to have a continuing first priority perfected
security interest in any or all of the Participation Amounts and
the Participation Assets related thereto (subject to no other Liens
other than any
46
Permitted Liens)
or any of the Master Servicer, the Company, an Originator or any
Affiliate of any of the foregoing, shall so assert;
(h)
a Federal tax
notice of a Lien shall have been filed against the Company or the
Trust unless there shall have been delivered to the Trustee and
each Funding Agent proof of release of such Lien;
(i)
a notice of a
Lien shall have been filed by the PBGC against the Company or the
Trust under Section 412(n) of the Code or
Section 302(f) of ERISA for a failure to make a required
installment or other payment to a plan to which
Section 412(n) of the Code or Section 302(f) of
ERISA applies unless there shall have been delivered to the Trustee
and each Funding Agent proof of the release of such
Lien;
(j)
the
Series 2000-1 Percentage Factor exceeds 100% unless the
Company reduces the Series 2000-1 Invested Amount or increases
the balance of the Eligible Receivables within five
(5) Business Days so as to reduce the Series 2000-1
Percentage Factor to less than or equal to 100%;
(k)
the average
Dilution Ratio for the three (3) preceding Settlement Periods
exceeds 4.00%;
(l)
the average Aged
Receivables Ratio for the three (3) preceding Settlement
Periods exceeds 2.5%;
(m)
the average
Delinquency Ratio for the three (3) preceding Settlement
Periods exceeds 5.0%;
(n)
the Servicer
Guarantor or any of its Subsidiaries shall default in the
observance or performance of any agreement or condition relating to
any of its outstanding Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default
or other event or condition is to cause such Indebtedness to become
due prior to its stated maturity; provided , however , that no Series 2000-1
Early Amortization Event shall be deemed to occur under this
paragraph unless the aggregate amount of Indebtedness in respect of
which any default or other event or condition referred to in this
paragraph shall have occurred shall be equal to at least
$50,000,000;
(o)
any action, suit,
investigation or proceeding at law or in equity (including
injunctions, writs or restraining orders) shall be brought or
commenced or filed by or before any arbitrator, court or
Governmental Authority against the Company or the Master Servicer
or any properties, revenues or rights of any thereof which could
reasonably be expected to have a Material Adverse
Effect;
(p)
one or more
judgments or decrees shall be entered against the Servicer
Guarantor or the Company involving in the aggregate a liability
(not paid or fully covered by insurance) of (i) with respect
to the Servicer Guarantor, $50,000,000 or (ii) with respect to
the Company, $25,000 or more and such
47
judgments or
decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within thirty (30) days from the entry
thereof;
(q)
a Change of
Control shall occur;
(r)
notwithstanding
Sections 2.08(s)
and
6.03 of the Pooling Agreement, a
merger or transaction involving Huntsman International, the Company
or an Originator (the “ relevant entity ”), whereby it is not
the surviving entity; provided , however , that no Series 2000-1
Early Amortization Event shall be deemed to occur under this
paragraph if (A) such merger or transaction does not, in the
reasonable opinion of the Administrative Agent or any Funding
Agent, have a Material Adverse Effect with respect to the relevant
entity and (B) legal opinions in form and substance
satisfactory to each Funding Agent and satisfying with respect to
all Series are delivered to the Trustee, the Administrative
Agent and each Funding Agent; and
(s)
failure to comply
with the FX Hedging Policy if such failure is not remedied within
three (3) Business Days of the date such failure
occurs,
then, in the case of (x) any event
described in Section 7.01(a) of the Pooling
Agreement, automatically without any notice or action on the part
of the Trustee or Series 2000-1 Purchasers, an Early
Amortization Period shall immediately commence or (y) any
other event described above, after the applicable grace period (if
any) set forth in the applicable Section, the Trustee may, and at
the written direction of any Funding Agent, shall, by written
notice then given to the Company and the Master Servicer, declare
that an Early Amortization Period has commenced as of the date of
such notice with respect to Series 2000-1 (any such period
under clause (x) or (y) above, a “
Series 2000-1 Early Amortization Period ”);
provided that a default by the Company in the payment of a
Subordinated Loan shall not constitute a Series 2000-1 Early
Amortization Event hereunder. Upon the occurrence of a
Series 2000-1 Early Amortization Event or a Potential
Series 2000-1 Early Amortization Event, the Administrative
Agent may, or shall at the written direction of any Funding Agent,
direct each Obligor to make all payments with respect to
Receivables directly to the relevant currency account established
by the Trustee pursuant to Section 3.01(a) of the
Pooling Agreement. Notwithstanding the foregoing, the
Company, at its option, may deliver U.S. Dollars, Euro and/or
Pounds Sterling (as applicable) to the Trustee in an amount
sufficient to cure any Early Amortization Event that is capable of
being cured by such delivery of U.S. Dollars, Euro and/or Pounds
Sterling (as applicable) only out of Collections from the
Series 2000-1 Concentration Accounts which are otherwise
allocable under Section 3A.03 to be paid to the Company
Receipts Account. Any cash so delivered to the Trustee shall
be in the form of a Subordinated Loan made by the Company to the
Trust and shall be subject to the provisions of
Section 11.16 .
ARTICLE VI
SERVICING FEE
SECTION 6.01
Servicing Compensation.
A monthly servicing fee (the “
Series 2000-1 Monthly Servicing Fee ”) shall be
payable to the Master Servicer on each Distribution Date for the
preceding Settlement Period, in an amount equal to the product of
(a) the Servicing Fee and (b) a fraction, the numerator
of
48
which shall be equal to the Series 2000-1
Invested Amount as of the end of the preceding Settlement Period
and the denominator of which shall be equal to the sum of
(1) the Series 2000-1 Aggregate Commitment Amount and
(2) the sum of the Invested Amounts for all other Outstanding
Series, each calculated as of the end of such preceding Settlement
Period. To the extent that funds on deposit in the
Series 2000-1 Non-Principal Concentration Subaccounts at any
such date are insufficient to pay the Series 2000-1 Monthly
Servicing Fee due on such date as set forth in the Monthly
Settlement Report delivered by the Master Servicer to the Trustee,
the Trustee shall so notify the Master Servicer and the Company,
and the Company will be obligated to immediately pay the Master
Servicer the amount of any such deficiency; provided that
any payments to be made by the Company pursuant to this
Section shall (i) be Company Subordinated Obligations,
(ii) be made solely from funds available to the Company that
are not required to be applied to Company Unsubordinated
Obligations then due and (iii) not constitute a general
recourse claim against the Company but only a claim against the
Company, to the extent of funds available after the satisfaction of
all Company Unsubordinated Obligations then due; provided,
further, that the Series 2000-1 Monthly Servicing Fee
payable to a Successor Master Servicer (which will be payable to
the Liquidation Servicer in accordance with the preceding sentence)
will not be a Company Subordinated Obligation and shall also be
payable from the application of funds from the Series 2000-1
Non-Principal Concentration Subaccounts in accordance with
Section 3A.06(b) . Notwithstanding any other
provision of this Supplement or any other Transaction Document, the
Monthly Servicing Fee, including the Series 2000-1 Monthly
Servicing Fee, payable to a Successor Master Servicer shall be paid
to the Liquidation Servicer so long as the Liquidation Servicer has
not resigned or been terminated.
ARTICLE VII
CHANGE IN CIRCUMSTANCES
SECTION 7.01
Illegality.
Notwithstanding any other provision herein, if,
after the Series 2000-1 Issuance Date, or with respect to any
Person becoming a Series 2000-1 Purchaser or a
Series 2000-1 APA Bank subsequent to the Series 2000-1
Issuance Date, after the new date such Person became a
Series 2000-1 Purchaser or a Series 2000-1 APA Bank, as
applicable (the “ Series 2000-1 Acquisition Date
”), the adoption of or any change in any Requirement of Law
or in the interpretation or administration thereof by any
Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any
Series 2000-1 Purchaser or Series 2000-1 APA Bank to make
or maintain its portion of the Series 2000-1 VFC
Certificateholder’s Interest in any Series 2000-1
Eurocurrency Tranche and such Series 2000-1 Purchaser or
Series 2000-1 APA Bank, as applicable, shall provide written
notice to its Funding Agent, the Administrative Agent, the Trustee,
the Master Servicer and the Company, then effective upon the
commencement of the next Series 2000-1 Eurocurrency Period, or
immediately if it shall be unlawful for such Series 2000-1
Purchaser or Series 2000-1 APA Bank to make or maintain its
portion of the Series 2000-1 VFC Certificateholder’s
Interest in any Series 2000-1 Eurocurrency Tranche to the end
of the applicable Series 2000-1 Eurocurrency Period,
Series 2000-1 Daily U.S. Dollar Interest Expense,
Series 2000-1 Daily Euro Interest Expense and
Series 2000-1 Daily Sterling Interest Expense in respect of
the portion of each Series 2000-1 Eurocurrency Tranche
applicable to such Series 2000-1 Purchaser or
Series 2000-1 APA Bank shall until the foregoing notice is
withdrawn by such Series 2000-1 Purchaser or
Series 2000-1 APA Bank be calculated by
49
reference to the ABR (such calculation shall be
performed by the Administrative Agent and in the absence of
manifest error shall be binding and conclusive). If any such
change in the method of calculating the Series 2000-1 Daily
U.S. Dollar Interest Expense, Series 2000-1 Daily Euro
Interest Expense or Series 2000-1 Daily Sterling Interest
Expense occurs on a day which is not the last day of the
Series 2000-1 Eurocurrency Period with respect to any
Series 2000-1 Eurocurrency Tranche, the Company shall pay to
the applicable Funding Agent for the account of such
Series 2000-1 Purchaser or Series 2000-1 APA Bank the
amounts (if any) as may be required pursuant to
Section 7.04 .
SECTION 7.02
Requirements of Law.
(a)
Notwithstanding
any other provision herein, if after the Series 2000-1
Issuance Date the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof by any
Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Series 2000-1
Purchaser or Series 2000-1 APA Bank with any request or
directive (whether or not having the force of law) from any central
bank or other Governmental Authority made (i) as to any
Series 2000-1 Purchaser or Series 2000-1 APA Bank that is
a Series 2000-1 Purchaser or Series 2000-1 APA Bank on
the date hereof, subsequent to the date hereof or (ii) as to
any Series 2000-1 Purchaser or Series 2000-1 APA Bank
that becomes a Series 2000-1 Purchaser or Series 2000-1
APA Bank after the date hereof, subsequent to the
Series 2000-1 Acquisition Date:
(i)
shall change the
basis of taxation of payments to any such Series 2000-1
Purchaser or Series 2000-1 APA Bank in respect of the
Transaction Documents; and
(ii)
shall impose,
modify or deem applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds
by, any office of such Series 2000-1 Purchaser or
Series 2000-1 APA Bank which is not otherwise included in the
determination of the Eurocurrency Rate;
and the result of any of the
foregoing is to increase the cost to such Series 2000-1
Purchaser or Series 2000-1 APA Bank by an amount which such
Series 2000-1 Purchaser or Series 2000-1 APA Bank deems
in its reasonable judgment to be material, of making, converting
into, continuing or maintaining Series 2000-1 Eurocurrency
Tranches or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Company will pay to such
Series 2000-1 Purchaser or Series 2000-1 APA Bank upon
demand such additional amount or amounts as will compensate such
Series 2000-1 Purchaser or Series 2000-1 APA Bank for
such additional costs incurred or reduced amount receivable other
than amounts with respect to Taxes for which the Company is held
harmless pursuant to Section 7.03 and without
duplication of any amounts for which the Company is obligated to
make payment under Section 7.03 .
(b)
If any
Series 2000-1 Purchaser which is a depository institution or
trust company subject to supervision and examination by federal,
state or foreign
50
banking or
depository institution authorities or Series 2000-1 APA Bank
(i) that is a Series 2000-1 Purchaser or
Series 2000-1 APA Bank, as the case may be, on the date hereof
shall have determined that the adoption after the
Series 2000-1 Issuance Date of or any change after the
Series 2000-1 Issuance Date or (ii) that becomes a
Series 2000-1 Purchaser or Series 2000-1 APA Bank, as the
case may be, after the date hereof shall have determined that the
adoption after the Series 2000-1 Acquisition Date of, or any
change after the Series 2000-1 Acquisition Date, in any
Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such
Series 2000-1 Purchaser or Series 2000-1 APA Bank or any
corporation controlling such Series 2000-1 Purchaser or
Series 2000-1 APA Bank with any request or directive regarding
capital adequacy (with respect to any Series 2000-1 Purchaser
which is a banking institution) (whether or not having the force of
law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such
Series 2000-1 Purchaser’s, such Series 2000-1 APA
Bank’s or such corporation’s capital (with respect to
any Series 2000-1 Purchaser which is a banking institution) as
a consequence of its obligations hereunder or under the Transaction
Documents to a level below that which such Series 2000-1
Purchaser, such Series 2000-1 APA Bank or such corporation
could have achieved but for such adoption, change or compliance
(taking into consideration such Series 2000-1
Purchaser’s, such Series 2000-1 APA Bank’s or such
corporation’s policies with respect to capital adequacy) by
an amount deemed by such Series 2000-1 Purchaser or
Series 2000-1 APA Bank in its reasonable judgment to be
material, then from time to time, the Company will promptly pay to
such Series 2000-1 Purchaser or Series 2000-1 APA Bank
such additional amount or amounts as will compensate such
Series 2000-1 Purchaser or Series 2000-1 APA Bank for
such reduction suffered.
(c)
Any payments to
be made by the Company pursuant to this Section shall
(i) be Company Subordinated Obligations, (ii) be made
solely from funds available to the Company that are not required to
be applied to Company Unsubordinated Obligations then due and
(iii) until the date that is one year and one day after
payment in full of the Company Unsubordinated Obligations, not
constitute a general recourse claim against the Company after
satisfying all Company Unsubordinated Obligations then due at any
time during the period of one year and one day followin |
