EXECUTION COPY
================================================================================
AAM MASTER TRUST
POOLING AGREEMENT
Dated as of October 29, 1997,
as amended and restated
as of March 25, 1999
Among
AAM RECEIVABLES CORP.
AMERICAN AXLE & MANUFACTURING, INC.
as Servicer
and
THE CHASE MANHATTAN BANK
as Trustee
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions ..................................................... 2
SECTION 1.01 Definitions ............................................................ 2 SECTION 1.02 Other Definitional Provisions .......................................... 31
ARTICLE II
Conveyance of Receivables;
Representations, Warranties and Covenants .............................. 33
SECTION 2.01 Conveyance of Receivables .............................................. 33 SECTION 2.02 Acceptance by Trustee .................................................. 37 SECTION 2.03 Representations and Warranties of the Company Relating to the Company .. 37 SECTION 2.04 Representations and Warranties of the Company Relating to the
Receivables ............................................................ 42 SECTION 2.05 Adjustment Payment for Ineligible Receivables .......................... 43 SECTION 2.06 Purchase of Investor Certificateholders' Interest in Trust Portfolio ... 45 SECTION 2.07 Affirmative Covenants of the Company ................................... 46 SECTION 2.08 Negative Covenants of the Company ...................................... 51
ARTICLE III
Rights of Holders and
Allocation and Application of Collections .............................. 56
SECTION 3.01 Establishment of Collection Account; Certain Allocations ............... 56
ARTICLE IV
ARTICLE IV IS RESERVED
AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO THE SERIES RELATING THERETO ............................ 63
ARTICLE V
The Investor Certificates and
Exchangeable Company Interest .......................................... 63
SECTION 5.01 The Investor Certificates .............................................. 63
SECTION 5.02 Authentication of Investor Certificates ................................ 64
TOC Pooling Agreement Contents, p. ii
Page
----
SECTION 5.03 Registration of Transfer and Exchange of Investor Certificates ......... 65 SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Investor Certificates ............. 68 SECTION 5.05 Persons Deemed Owners .................................................. 68 SECTION 5.06 Appointment of Paying Agent ............................................ 69 SECTION 5.07 Access to List of Investor Certificateholders' Names and Addresses ..... 70 SECTION 5.08 Authenticating Agent ................................................... 71 SECTION 5.09 Tax Treatment .......................................................... 73 SECTION 5.09(A) Administration of the Trust as a FASIT ................................. 73 SECTION 5.09(B) Compliance with the Internal Revenue Code and Treasury Regulations ..... 76 SECTION 5.10 Exchangeable Company Interest .......................................... 77 SECTION 5.11 Book-Entry Certificates ................................................ 82 SECTION 5.12 Notices to Clearing Agency ............................................. 83 SECTION 5.13 Definitive Certificates ................................................ 84
ARTICLE VI
Other Matters Relating to the Company ................................. 84
SECTION 6.01 Liability of the Company .............................................. 84 SECTION 6.02 Limitation on Liability of the Company ................................. 85
ARTICLE VII
Early Amortization Events ........................................... 85
SECTION 7.01 Early Amortization Events .............................................. 85 SECTION 7.02 Additional Rights upon the Occurrence of Certain Events ................ 87
ARTICLE VIII
The Trustee ...................................................... 89
SECTION 8.01 Duties of Trustee ...................................................... 89 SECTION 8.02 Rights of the Trustee .................................................. 92 SECTION 8.03 Trustee Not Liable for Recitals ........................................ 94 SECTION 8.04 Trustee May Own Investor Certificates .................................. 95 SECTION 8.05 Trustee's Fees and Expenses ............................................ 95 SECTION 8.06 Eligibility Requirements for Trustee ................................... 96 SECTION 8.07 Resignation or Removal of Trustee ...................................... 97 SECTION 8.08 Successor Trustee ...................................................... 98 SECTION 8.09 Merger or Consolidation of Trustee ..................................... 98 SECTION 8.10 Appointment of Co-Trustee or Separate
TOC Pooling Agreement Contents, p. iii
Page
----
Trustee ................................................................ 99 SECTION 8.11 Tax Returns ............................................................ 100 SECTION 8.12 Trustee May Enforce Claims Without Possession of Investor
Certificates ........................................................... 101 SECTION 8.13 Suits for Enforcement .................................................. 101 SECTION 8.14 Rights of Investor Certificateholders to Direct Trustee ................ 102 SECTION 8.15 Representations and Warranties of Trustee .............................. 103 SECTION 8.16 Maintenance of Office or Agency ........................................ 103 SECTION 8.17 Limitation of Liability ............................................... 103
ARTICLE IX
Termination ............................................... 104
SECTION 9.01 Termination of Trust .................................................... 104 SECTION 9.02 Optional Purchase and Final Termination Date of Investor
Certificates of Any Series .............................................. 104 SECTION 9.03 Final Payment with Respect to Any Series ................................ 107 SECTION 9.04 Company's Termination Rights ............................................ 108
ARTICLE X
Miscellaneous Provisions ......................................... 109
SECTION 10.01 Amendment ............................................................... 109 SECTION 10.02 Protection of Right, Title and Interest to Trust ........................ 111 SECTION 10.03 Limitation on Rights of Holders ......................................... 111 SECTION 10.04 Governing Law ........................................................... 113 SECTION 10.05 Notices ................................................................. 113 SECTION 10.06 Severability of Provisions .............................................. 114 SECTION 10.07 Assignment .............................................................. 114 SECTION 10.08 Investor Certificates Nonassessable and Fully Paid ...................... 114 SECTION 10.09 Further Assurances ...................................................... 114 SECTION 10.10 No Waiver; Cumulative Remedies .......................................... 114 SECTION 10.11 Counterparts ............................................................ 115 SECTION 10.12 Third-Party Beneficiaries ............................................... 115 SECTION 10.13 Actions by Investor Certificateholders .................................. 115 SECTION 10.14 Merger and Integration .................................................. 115 SECTION 10.15 Headings ................................................................ 116 SECTION 10.16 Construction of Agreement ............................................... 116
TOC Pooling Agreement Contents, p. iv
Page
----
SECTION 10.17 No Setoff ............................................................... 116 SECTION 10.18 No Bankruptcy Petition .................................................. 116 SECTION 10.19 Limitation of Liability ................................................. 116 SECTION 10.20 Certain Information ..................................................... 118
EXHIBITS
Exhibit A Form of Lockbox Agreement Exhibit B Form of Annual Opinion of Counsel Exhibit C Internal Operating Procedures Memorandum
SCHEDULES
Schedule 1 Receivables Schedule 2 Identification of Trust Accounts Schedule 3 Location of Chief Executive Office of the Company
APPENDICES
Appendix A Description of Servicer Site Review Procedures Appendix B Description of Standby Liquidation System
POOLING AGREEMENT, dated as of October 29,
1997, as amended and restated as of March 25, 1999,
among AAM RECEIVABLES CORP., a Delaware corporation
(the "Company"); AMERICAN AXLE & MANUFACTURING, INC.,
a Delaware corporation ("AAM", in its capacity as
servicer, the "Servicer"); and THE CHASE MANHATTAN
BANK, a New York banking corporation, not in its
individual capacity, but solely as trustee (in such
capacity, the "Trustee").
W I T N E S S E T H :
WHEREAS, (i) the Company, the Seller and the Servicer entered into a Receivables Sale Agreement, dated as of October 29, 1997, as amended and restated as of March 25, 1999 (as amended, supplemented or otherwise modified from time to time thereafter, the "Receivables Sale Agreement") and (ii) the Company, the Servicer and the Trustee entered into a Servicing Agreement, dated as of October 29, 1997, as amended and restated as of March 25, 1999 (as amended, supplemented or otherwise modified from time to time thereafter, the "Servicing Agreement");
WHEREAS, the parties hereto entered into the Pooling Agreement, dated as of October 29, 1997 (the "Existing Pooling Agreement")in order to create a master trust to which the Company would transfer all its right, title and interest in, to and under the Receivables and other Trust Assets then or thereafter owned by the Company, or in which the Company has an interest, and such master trust shall, from time to time at the direction of the Company, issue one or more Series of Investor Certificates, representing interests in the Receivables and such other Trust Assets as specified therein and in the Supplement related to such Series; and
WHEREAS, the parties hereto wish to amend and restate the Existing Pooling Agreement in its entirety.
Pooling Agreement 2
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 that the Existing Pooling Agreement shall be and hereby is amended and restated in its entirety as follows:
ARTICLE I
Definitions
SECTION 1.01 Whenever used in this Agreement, the following words and phrases shall have the following meanings:
"AAM" shall mean American Axle & Manufacturing Corp., a Delaware corporation.
"Accounts" shall have the meaning specified in subsection 2.01(a)(vi) of this Agreement.
"Adjusted Invested Amount" shall mean, with respect to any Outstanding Series, the definition assigned to such term in the related Supplement.
"Adjustment Payments" shall mean the collective reference to payments of Transfer Deposit Amounts and Cash Dilution Payments.
"Affiliate" shall mean, with respect to any specified Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified Person and any Person who is a director, officer or general partner of such specified Person. For purposes of this definition, "control" of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person, if any, so designated in the related Supplement.
"Aggregate Adjusted Invested Amount" shall mean, with respect to any date of determination, the sum
Pooling Agreement 3
of the Adjusted Invested Amounts with respect to all Outstanding Series on such date of determination.
"Aggregate Allocated Receivables Amount" shall mean, with respect to any date of determination, the sum of the Allocated Receivables Amounts with respect to all Outstanding Series on such date of determination.
"Aggregate Daily Collections" shall mean, with respect to any Business Day, the aggregate amount of all Collections deposited into the Collection Account on such day.
"Aggregate Invested Amount" shall mean, at any date of determination, the sum of the Invested Amounts with respect to all Outstanding Series on such date of determination.
"Aggregate Overconcentration Amount" shall mean, with respect to any date of determination, the sum of the Overconcentration Amounts of all Eligible Obligors at the end of the preceding Business Day.
"Aggregate Receivables Amount" shall mean, with respect to any date of determination, (i) the aggregate Principal Amount of all Eligible Receivables in the Trust at the end of the Business Day immediately preceding such date minus (ii) the Aggregate Overconcentration Amount for such date.
"Aggregate Target Receivables Amount" shall mean, with respect to any date of determination, the sum of the Target Receivables Amounts with respect to all Outstanding Series on such date of determination.
"Agreement" shall mean the Existing Pooling Agreement, as amended and restated as of March 25, 1999, and all amendments hereof and supplements hereto, and including, unless expressly stated otherwise, each Supplement.
"Allocable Charged-Off Amount" shall have, with respect to any Series, the meaning specified in subsection 3.01(e) and in any Supplement for such Series.
"Allocable Recoveries Amount" shall have, with respect to any Series, the meaning specified in subsection 3.01(e) and in any Supplement for such Series.
Pooling Agreement 4
"Allocated Receivables Amount" shall have, with respect to any Outstanding Series, the meaning specified in the related Supplement for such Outstanding Series.
"Amortization Period" shall have, with respect to any Outstanding Series, the definition assigned to such term in the related Supplement.
"Applicable Insolvency Laws" shall have the meaning specified in subsection 7.01(a).
"Authorized Newspaper" shall mean a newspaper with a national circulation printed in the English language and customarily published on each Business Day.
"Bankruptcy Code" shall mean the United States Federal Bankruptcy Code, 11 U.S.C. Sections 101-1330, as amended.
"Board" shall mean the Board of Governors of the Federal Reserve System of the United States of America.
"Book-Entry Certificates" shall mean certificates evidencing a beneficial interest in the Investor Certificates, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 5.11; provided, however, that after the occurrence of a condition whereupon book-entry registration and transfer are no longer permitted and Definitive Certificates are issued to the Certificate Book-Entry Holders, such Investor Certificates shall no longer be "Book-Entry Certificates".
"Business Day" shall mean any day other than (i) a Saturday or a Sunday or (ii) another day on which commercial banking institutions or trust companies in the State of New York or in the city where the Corporate Trust Office is located, are authorized or obligated by law, executive order or governmental decree to be closed; provided that, when used in connection with the calculation of Certificate Rates which are determined by reference to LIBOR, "Business Day" shall mean any Business Day banks are open for dealings in dollar deposits in the London interbank market.
"Business Day Received" shall mean, except as otherwise set forth in the applicable Supplement, (i) with respect to funds deposited in the Collection Account (a) if funds are deposited in the Collection
Pooling Agreement 5
Account by 1:30 p.m., New York City time, such day of deposit and (b) if funds are deposited in the Collection Account after 1:30 p.m., New York City time, the Business Day immediately following such day of deposit and (ii) with respect to funds deposited in any Lockbox Account (a) if funds are deposited in such Lockbox Account by the cut-off time established by the related Lockbox Processor for same-day processing of deposits, such day of deposit and (b) if funds are deposited in such Lockbox Account after such cut-off time, the Business Day immediately following such day of deposit.
"Cash Dilution Payment" shall have the meaning specified in subsection 4.05(a) of the Servicing Agreement.
"Certificate Book-Entry Holder" shall mean, with respect to a Book-Entry Certificate, the Person who is listed on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency, as the beneficial owner of such Book-Entry Certificate (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).
"Certificate Rate" shall mean with respect to any Series and Class of Investor Certificates, the percentage interest rate (or formula on the basis of which such interest rate shall be determined) stated in the applicable Supplement.
"Certificate Register" shall mean the register maintained pursuant to subsection 5.03(a), providing for the registration of the Investor Certificates and transfers and exchanges thereof.
"Charged-Off Receivables" shall mean, with respect to any Settlement Period, all Receivables (or portions thereof) which, in accordance with the Policies of the Seller, have or should have been written off during such Settlement Period as uncollectible, including, without limitation, the Receivables of any Obligor which becomes the subject of any voluntary or involuntary bankruptcy proceeding.
"Class" shall mean, with respect to any Series, any one of the classes of Investor Certificates of that Series as specified in the related Supplement.
Pooling Agreement 6
"Clean-Up Call Repurchase Price" shall have the meaning set forth in subsection 9.02(a).
"Clearing Agency" shall mean each organization registered as a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with such Clearing Agency.
"Collection Account" shall have the meaning specified in subsection 3.01(a).
"Collections" shall mean all collections and all amounts received in respect of the Receivables transferred to the Trust, including Recoveries, Adjustment Payments, indemnification payments made by the Servicer or the Company and payments received in respect of Dilution Adjustments, together with all collections received in respect of the Related Property in the form of cash, checks, wire transfers or any other form of cash payment, and all proceeds of Receivables and collections thereof (including, without limitation, collections constituting an account or general intangible or evidenced by a note, instrument, letter of credit, security, contract, security agreement, chattel paper or other evidence of indebtedness or security, whatever is received upon the sale, exchange, collection or other disposition of, or any indemnity, warranty or guaranty payable in respect of, the foregoing and all "proceeds" as defined in Section 9-306 of the UCC as in effect in the State of New York).
"Company" shall mean AAM Receivables Corp., a Delaware corporation.
"Company Collection Subaccount" shall have the meaning specified in subsection 3.01(a).
"Company Exchange" shall have the meaning specified in subsection 5.10(a).
"Company Repurchase Payment" shall have the meaning specified in subsection 2.05(b).
"Company Subordinated Obligation" shall mean any payment obligation or other liability designated as
Pooling Agreement 7
such in any Pooling and Servicing Agreement, each of which payment obligations and other liabilities shall (i) be subordinated and subject to the prior payment in full of all Company Unsubordinated Obligations then due, (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 to the Company after satisfying all Company Unsubordinated Obligations then due.
"Company Unsubordinated Obligations" shall mean all payment obligations and other liabilities of the Company under any Pooling and Servicing Agreement that are not designated as Company Subordinated Obligations.
"Contractual Obligation" shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
"Corporate Trust Office" shall mean the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of the execution of this Agreement is located at The Chase Manhattan Bank, 450 W. 33rd Street, 14th Floor, New York, New York 10001 (Attention of: Structured Finance Services Group, AAM Master Trust).
"Credit Agreement" shall mean the Credit Agreement dated as of October 27, 1997, among American Axle & Manufacturing of Michigan, Inc., the Seller, the lenders named therein, The Chase Manhattan Bank, as Administrative Agent and Collateral Agent, and Chase Manhattan Bank Delaware, as Fronting Bank (including any amendments or modifications thereto or refinancing thereof).
"Credit Enhancer" shall mean, with respect to any Outstanding Series, that Person, if any, designated as such in the applicable Supplement.
"Cut-Off Date" shall mean the close of business on October 24, 1997.
"Daily Report" shall have the meaning specified in subsection 4.01 of the Servicing Agreement.
Pooling Agreement 8
"DCR" shall mean Duff & Phelps Credit Rating Co. or any successor thereto.
"Defaulted Receivable" shall mean any Eligible Receivable which is unpaid in whole or in part for more than 120 days after its original due date.
"Definitive Certificates" shall have the meaning specified in Section 5.11.
"Deposit Date" shall have the meaning specified in Section 3.01(d).
"Depository" shall mean, with respect to any Series, the Clearing Agency designated as the "Depository" in the related Supplement.
"Depository Agreement" shall mean, with respect to any Series, an agreement among the Company, the Trustee and a Clearing Agency, or a letter of undertaking to a Clearing Agency by the Company and the Trustee, in each case in a form reasonably satisfactory to the Trustee and the Company.
"Designated Obligor" shall mean, with respect to any Outstanding Series, the definition assigned to such term in the related Supplement.
"Dilution Adjustment" shall mean any payments, rebates, discounts, refunds or adjustments (including without limitation, as a result of the application of any special or other discounts or any reconciliations) of any Receivable, the amount owing for any returns (including, without limitation, as a result of the return of any defective goods) or cancellations and the amount of any other reduction of any payment under any Receivable, in each case granted or made by the Seller ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.