Transamerica Life Insurance and Annuity Company
1150 South Olive Street
Los Angeles, CA 90015
December 30, 1996
Pickering Way Funding Corp. First Union National Bank, as Trustee
102 Pickering Way 123 South Broad Street
Exton, PA 19341-0200 Philadelphia, PA 19109
Re: Pickering Way Funding Trust - Certificate Purchase Agreement
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Ladies and Gentlemen:
On May 14, 1993, Transamerica Life Insurance and Annuity Company (the
"Purchaser") purchased a Pickering Way Funding Trust Asset Backed Certificate in
the principal amount of $23,000,000 (the "Initial Certificate"), which was
issued pursuant to the Pooling and Servicing Agreement dated as of May 14, 1993
(the "Pooling and Servicing Agreement"), among Pickering Way Funding Corp., a
Delaware corporation (the "Seller"), Chemical Leaman Corporation, a Pennsylvania
corporation (the "Servicer"), and Fidelity Bank, National Association, a
national banking association, predecessor to First Union National Bank, as
trustee (the "Trustee"). On December 16, 1994, the parties to the Pooling and
Servicing Agreement entered into a First Amendment thereto (the "First Pooling
Amendment") in connection with which the Initial Certificate was restated, and
the Purchaser purchased an additional Pickering Way Funding Trust Asset Backed
Certificate in the principal amount of $2,000,000 (the "1994 Certificate", and
together with the restated Initial Certificate, the "Existing Certificates").
Concurrently with the execution of this Agreement, the parties to the Pooling
and Servicing Agreement have entered into a Second Amendment thereto (the
"Second Pooling Amendment"), which provides for, among other things, an
extension to the term of the Pooling and Servicing Agreement.
Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the meanings set forth in the Pooling and Servicing
Agreement, as amended by the First Pooling Amendment and the Second Pooling
Amendment.
In consideration for the Seller's agreement to extend the term of the
Pooling and Servicing Agreement and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the Purchaser,
and intending to be legally bound hereby, the Purchaser has agreed to purchase
in a private sale an additional Pickering Way Funding Trust Asset Backed
Certificate in the principal amount of $3,000,000 (the "Additional
Certificate"), on the terms and conditions set forth below:
1. Purchase of Additional Certificate. Subject to the terms and conditions
of this Agreement, the Purchaser agrees to purchase the Additional Certificate
from the Trust for a purchase price of $3,000,000 (the "Commitment Amount"),
upon written notice from the Seller that it has elected to issue the Additional
Certificate (the "Take-Down Notice"), which may be given by the Seller to the
Purchaser at any time during the Term of this Agreement.
2. Term of Agreement. The term of this Agreement (the "Terms") shall
commence on the date hereof and shall terminate on the earliest of (i) December
15, 1999, (ii) the Trust Termination Date, or (iii) the date on which the Seller
shall terminate this Agreement by written notice to the Purchaser.
3. The Closing of the Purchase. The closing of the purchase of the
Additional Certificate (the "Closing") shall be on the date specified by the
Seller in the Take-Down Notice (the "Closing Date"), which shall be a Business
Day not less than ten (10) days (unless a lesser period is agreed to by each of
the parties hereto) or more than thirty (30) days after the date of the
Take-Down Notice. The Closing of the purchase shall be effected by the delivery
to the Purchaser of the Additional Certificate, dated the Closing Date and duly
authenticated by the Trustee, against the Purchaser's payment of the purchase
price in immediately available funds.
4. The Additional Certificate. The Additional Certificate shall be issued
in accordance with the terms and conditions of the Pooling and Servicing
Agreement and, when authenticated by the Trustee, shall be entitled to the
benefits of the Pooling and Servicing Agreement and the other Transaction
Documents. The Additional Certificate shall be substantially in the form of
Exhibit B to the Second Pooling Amendment.
5. Amendment and Restatement of Existing Certificates. The Existing
Certificates shall be automatically amended and restated as of the Closing Date
as set forth in the form of the amended and restated certificates attached as
Exhibits C-1 and C-2 to the Second Pooling Amendment. At the Closing, the
Purchaser shall surrender the Existing Certificates to the Trustee in exchange
for such amended and restated Existing Certificates.
6. Commitment Fee. The Seller agrees to pay to the Purchaser a commitment
fee of one quarter of one percent (0.25%) per annum on the Commitment Amount,
from the date of this Agreement until the earlier of the Closing Date or the
expiration of the Term hereof. This commitment fee shall be payable annually in
advance, commencing on the date of this Agreement and on each anniversary
hereof. If the Closing hereunder occurs or the Term hereof expires between
anniversary dates, the Purchaser shall refund to the Seller the portion of the
annual commitment fee paid by the Seller that is attributable to the remaining
portion of the year.
7. Conditions Precedent to Closing. The obligation of the Purchaser to
purchase the Additional Certificate shall be subject to the following
conditions:
(a) The representations and warranties of the Seller, the Servicer and
each of the Originators contained herein and in the Transaction Documents
shall be true and correct in all material respects on and as of the date of
issuance of the Additional Certificate (except to the extent that a
different date is specified in any such Transaction Document);
(b) No event shall have occurred or condition shall exist, both before
and after giving effect to the issuance of the Additional Certificate,
which would constitute a Termination Event under the Pooling and Servicing
Agreement or the Receivables Purchase Agreement, or which, with the lapse
of time or giving of notice or both, would constitute such a Termination
Event; and
(c) The credit analysis of the investment in the Additional
Certificate shall not have been materially and adversely affected after the
date hereof as a result of a change in applicable law (whether due to the
enactment, adoption, amendment or modification of any law, rule or
regulation, the issuance of any judicial or administrative order, decision
or ruling, or otherwise) relating to any of the legal issues addressed in
the opinions of Pepper Hamilton & Scheetz delivered pursuant to Section
4(d) of the Second Pooling Amendment.
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8. Representations and Warranties of the Seller. The Seller represents and
warrants to the Purchaser as follows:
(a) The Seller is a corporation duly organized and validly existing
under the laws of the State of Delaware and has full corporate power,
authority and legal right to enter into this Agreement and to execute and
deliver the Additional Certificate pursuant hereto.
(b) The Seller is duly qualified to do business and is in good
standing (or is exempt from such requirement) in any state required in
order to conduct its business, and has obtained all necessary licenses and
approvals with respect to the Seller required under applicable law.
(c) The execution and delivery of this Agreement by the Seller and the
consummation of the transactions provided for in this Agreement have been
duly authorized by the Seller by all necessary corporate action on its
part, and this Agreement has been duly executed by the Seller.
(d) This Agreement constitutes a legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its terms,
except as such enforceability may be limited by Debtor Relief Laws.
(e) The execution, delivery and performance of this Agreement by the
Seller and the issuance of the Additional Certificate will not (i)
contravene its Certificate of Incorporation or By- Laws, (ii) violate any
provision of, or require any filing, registration, consent or approval
under, any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to
the Seller, except for such filings, registrations, consents or approvals
as have already been obtained and are in full force and effect, (iii)
result in a breach of or constitute a default or require any consent under
any indenture or loan or credit agreement or any other agreement, lease or
instrument to which the Seller is a party or by which it or its properties
may be bound or affected, or (iv) result in, or require, the creation or
imposition of any Lien upon or with respect to any of the properties now
owned or hereafter acquired by the Seller other than as specifically
contemplated by the Pooling and Servicing Agreement.
(f) The execution, delivery and performance of this Agreement by the
Seller and the issuance of the Additional Certificate will not conflict
with or violate in any material respect any Requirements of Law applicable
to the Seller.
(g) All approvals, authorizations, consents, orders or other actions
of any Person or of any governmental body or official required in
connection with the execution, delivery and performance of this Agreement
by the Seller and issuance of the Additional Certificate have been
obtained.
9. Representations of the Purchaser. The Purchaser hereby represents and
agrees as follows:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it was
incorporated and is authorized to invest in the Additional Certificate
being purchased hereby. The person executing this letter on behalf of the
Purchaser is duly authorized to do so on the Purchaser's behalf.
(b) The Purchaser will be acquiring the Additional Certificate for its
own account or for accounts for which it exercises sole investment
discretion for the purpose of investment and
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not with a view to or for sale in connection with any distribution thereof,
subject nevertheless to any requirement of law that the disposition of the
Purchaser's property shall at all times be and remain within its control,
and further subject to the right of Purchaser to sell the Additional
Certificate pursuant to and in compliance with Rule 144A promulgated under
the Securities Act of 1933, as amended (the "Securities Act").
(c) The Purchaser has received all of the information that it has
requested from the Seller concerning the Additional Certificate, the Trust,
the Seller, the Originators and the Servicer. The Purchaser has reviewed
and understands this information and understands that risks are involved in
an investment in the Additional Certificate. The Purchaser has had an
opportunity to ask questions, and conduct its own investigation concerning
the Trust, the Seller, the Originators and the Servicer, the Additional
Certificate and the security for repayment thereof, and has received
satisfactory answers to such questions and investigation.
(d) The Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Additional Certificate and the Purchaser (or any account
referred to above) is able to bear the economic risks of such an
investment.
(e) The Purchaser is a "qualified institutional buyer" (as defined in
Rule 144A promulgated under the Securities Act), and is an "accredited
investor" (as defined in Rule 501 promulgated under the Securities Act).
Since the Purchaser is an insurance company and has made the
representations set forth above, the issuance of the Additional Certificate
to the Purchaser is exempt from qualification under the California
Corporate Securities Law of 1968, as amended, pursuant to Section 25102(i)
thereof.
(f) The Purchaser will comply with all applicable federal and state
securities laws, rules and regulations in connection with any subsequent
resale of the Additional Certificate by the Purchaser.
(g) The Purchaser understands that the Additional Certificate has not
been and will not be registered under the Securities Act or any state
securities act or any other federal or state laws, that neither the Seller
nor the Trustee is required so to register the Additional Certificate, and
that the Additional Certificate may be resold only if registered pursuant
to the provisions of the Securities Act and other applicable federal and
state securities laws, or if an exemption from any requirement of
registration is available.
(h) The Purchaser is not an employee benefit plan, trust or account,
including an individual retirement account, subject to Section 406 of the
Employee Retirement Income Security act of 1974, as amended, or subject to
Section 4975 of the internal Revenue Code of 1986, as amended, or
comparable provisions of any subsequent enactment (any such plan, trust or
account being referred to as "Plan"), a trustee of any Plan, or any entity
whose underlying assets include the assets of any Plan by reason of such
Plan's investment in the entity.
(i) Before the Purchaser sells all or any part of the Additional
Certificate, the Purchaser will (i) obtain from each purchaser of a
Additional Certificate an investment letter, on which the Seller and the
Trust shall be expressly permitted to rely, containing the same
representations, warranties and agreements contained in subsections
(a) through (h) above and in this subsection (i), and (ii) if requested by
the Trustee or the Seller, deliver an opinion of counsel, satisfactory in
form and substance to
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the Seller and the Trustee, to the effect that such sale is in compliance
with the securities Act and all other applicable federal and state
securities laws.
(j) The Purchaser acknowledges that compliance with the requirements
of subsection (i) above is a condition to registration of the transfer of
the Additional Certificate on the Certificate Register.
10. Amendments, Waivers, Etc. No amendment or waiver of any provision
of this Agreement or consent to any departure by the Purchaser therefrom
shall be effective unless in a writing signed by the Seller and then such
amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No failure on the
part of the Seller to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
11. Notices, Etc. All notices and other communications hereunder
shall, unless otherwise stated herein, be in writing (including facsimile
communication) and sent by any national overnight delivery service, by
telecopy if sender retains proof of telecopy, or delivered, to each party
hereto, at its address set forth below or at such other address as shall be
designated by such party in a written notice to the other parties hereto:
If to Purchaser: Transamerica Life Insurance and
Annuity Company
1150 South Olive Street
Los Angeles, CA 90015
Attention: John Casparian,
Vice President
If to Seller: Pickering Way Funding Corp.
102 Pickering Way
Lionville, PA 19341
Attention: President
If to Trustee: First Union National Bank. as Trustee
123 South Broad Street
Philadelphia, PA 19109
Attention: Corporate Trust Department
Notices and communications by (i) facsimile shall be effective when sent if
a copy of such facsimile, together with proof of such telecopying, is sent by
first class U.S. mail, promptly thereafter to the recipient of such facsimile,
(ii) by national overnight delivery service shall be effective the next Business
Day; and (iii) notices and communications sent by other means shall be effective
when received.
12. Governing Law. This Agreement shall be construed in accordance with the
laws of the Commonwealth of Pennsylvania without reference to its conflict of
law provisions, and the obligations, rights remedies of the parties hereunder
shall be determined in accordance with such laws.
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13. Further Assurances. The Seller and the Purchaser agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments reasonably required to more fully effect the purposes of this
Agreement.
14. Counterparts. This Agreement may be executed in one or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
15. Readings. The headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision of
this Agreement.
If this Agreement is satisfactory to you, please sign the acceptance below
and return this Agreement to the undersigned, whereupon this Agreement will
become binding among us in accordance with its terms.
Very truly yours,
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By: /s/ John M. Casparian
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Name: John M. Casparian
Title: Investment Officer
ACCEPTED AND AGREED:
PICKERING WAY FUNDING CORP.
By: /s/ David M. Boucher
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Name: David M. Boucher
Title:
FIRST UNION NATIONAL BANK, successor to FIRST FIDELITY
BANK, NATIONAL ASSOCIATION, as Trustee
By: /s/ Alan G. Finn
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Name: Alan G. Finn
Title Assistant Vice President