FIFTH AMENDMENT TO
POOLING AND SERVICING AGREEMENT
This FIFTH AMENDMENT TO PICKERING WAY FUNDING TRUST POOLING AND SERVICING
AGREEMENT (the "Fifth Amendment") is made as of December 31, 1997, by and among
Pickering Way Funding Corp., a Delaware corporation (the "Seller"), Chemical
Leaman Corporation, a Pennsylvania corporation ("CLC" and, in its capacity as
Servicer, sometimes referred to herein as "Servicer"), and First Union National
Bank, a national banking association, as successor to First Fidelity Bank,
National Association, successor to Fidelity Bank, National Association, in its
capacity as Trustee (the "Trustee").
Background
The Seller, CLC and the Trustee are parties to a Pooling and Servicing
Agreement dated as of May 14, 1993 (as amended from time to time, including by
this Fifth Amendment, the "Pooling and Servicing Agreement"). Pursuant to the
Pooling and Servicing Agreement, the Seller conveys to a trust (the "Trust")
certain trade receivables and related assets acquired from Chemical Leaman Tank
Lines, Inc., Quala Systems, Inc. and Fleet Transport Company, Inc.
(collectively, the "Originators") under a Receivables Contribution and Purchase
Agreement among the Originators, the Seller and CLC dated as of May 14, 1993 (as
amended from time to time, the "Receivables Purchase Agreement"). The Trust has
issued certificates evidencing undivided beneficial interests in the Trust to an
investor. In addition, the Servicer services the administration and collection
of the receivables and other assets so conveyed in accordance with the
provisions of the Pooling and Servicing Agreement. The Seller, CLC and the
Trustee desire to amend the Pooling and Servicing Agreement as set forth herein.
IN CONSIDERATION of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree to the following:
I. Defined Terms. For purposes of this Fifth Amendment, except as otherwise
provided in this Fifth Amendment, capitalized terms not otherwise defined in
this Fifth Amendment shall have the meanings assigned to such terms in the
Pooling and Servicing Agreement, as amended.
II. Amendments to Pooling and Servicing Agreement.
A. The following new definition is hereby added to Section 1.1:
"Fifth Pooling and Servicing Amendment" shall mean the Fifth Amendment
to this Agreement dated as of December 31, 1997.
B. The Required Net Worth provision in Section 3.5(l) is hereby amended by
deleting the amount $15,000,000 and substituting in its place the amount
$14,000,000.
C. The Termination Event provision set forth in Section 9.1 (i) is hereby
deleted in its entirety and in its place is substituted the following language:
(i) CLC fails to maintain (i) an average Fixed Charge Ratio of at
least 1.75 to 1 for any (12) consecutive Accounting Periods, or
(ii) a minimum Consolidated Shareholders Equity of at least
$14,000,000;
III. Consent of Trustee. The Trustee hereby consents to this Fifth Amendment.
IV. Effectiveness. The effectiveness of this Fifth Amendment is subject to the
following conditions:
A. The written consent of the Investor Certificateholder Representative,
substantially in the form attached to this Fifth Amendment as Exhibit A,
consenting to this Fifth Amendment.
V. Authorization/Ratification.
A. Each of the Seller, CLC and the Trustee represent and warrant that (i)
it has taken all action necessary to authorize it to execute, deliver and
perform this Fifth Amendment and (ii) each of this Fifth Amendment and the
Pooling and Servicing Agreement, as amended hereby, constitutes a valid and
legally binding obligation of it enforceable against it in accordance with its
terms, except as such enforceability may be limited by Debtor Relief Laws.
B. The Pooling and Servicing Agreement, as amended by this Fifth Amendment,
is hereby ratified and confirmed in all respects.
VI. Governing Law. This Fifth Amendment shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania, excluding its
conflict of laws rules.
VII. Counterparts. This Fifth Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page of this
Fifth Amendment by telecopy shall be effective as delivery of a manually
executed counterpart of this Fifth Amendment.
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IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Fifth Amendment to Pooling and Servicing Agreement as of the
first date written above.
Attest: PICKERING WAY FUNDING CORP.
By: /s/ Eugene C. Parkerson By: /s/ David M. Boucher
---------------------------- -------------------------------
Name: Eugene C. Parkerson Name: David M. Boucher
Title: Vice President Title: Vice President
Attest: CHEMICAL LEAMAN CORPORATION
By: /s/ Eugene C. Parkerson By: /s/ David M. Boucher
---------------------------- -------------------------------
Name: Eugene C. Parkerson Name: David M. Boucher
Title: Vice President Title: Vice President
Attest: FIRST UNION NATIONAL BANK, as
Trustee
By: /s/ David Leondi By: /s/ John Clapham
---------------------------- -------------------------------
Name: David Leondi Name: John Clapham
Title: Vice President Title: Vice President
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Transamerica Life Insurance and Annuity Company
1150 S. Olive Street
Los Angeles, CA 90015
Dated as of December 31, 1997
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 -
Fifth Amendment to Pooling and Servicing Agreement
Ladies and Gentlemen:
As the Investor Certificateholder Representative under the Pooling and
Servicing Agreement dated as of May 14, 1993, as amended, among Pickering Way
Funding Corp., a Delaware corporation, Chemical Leaman Corporation, a
Pennsylvania corporation, and First Union National Bank, successor to First
Fidelity Bank, National Association (as successor to Fidelity Bank, National
Association), as Trustee (the "Pooling and Servicing Agreement"), Transamerica
Life Insurance and Annuity Company hereby consents to the Fifth Amendment to the
Pooling and Servicing Agreement in the form attached hereto as Exhibit A.
Very truly yours,
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By: /s/ John Casparian
---------------------------------
Name: John Casparian
Title: Vice President
A-1
SIXTH AMENDMENT TO
POOLING AND SERVICING AGREEMENT
This SIXTH AMENDMENT TO PICKERING WAY FUNDING TRUST POOLING AND SERVICING
AGREEMENT (the "Sixth Amendment") is made as of December 31,1997, by and among
Pickering Way Funding Corp., a Delaware corporation (the "Seller"), and Chemical
Leaman Corporation, a Pennsylvania corporation ("CLC" and, in its capacity as
servicer, sometimes referred to herein as "Servicer"), and First Union National
Bank, a national banking association in its capacity as Trustee (the "Trustee").
Background
The Seller, CLC and the Trustee are parties to a Pooling and Servicing
Agreement dated as of May 14, 1993 (as amended from time to time, including by
this Sixth Amendment, the "Pooling and Servicing Agreement").
i. Pursuant to the Pooling and Servicing Agreement, the Seller conveys to
a trust (the "Trust") certain trade receivables and related assets
acquired from Chemical Leaman Tank Lines, Inc. and Quala Systems, Inc.
(collectively, the "Originators") under a Receivables Contribution and
Purchase Agreement among the Originators, the Seller and CLC dated as
of May 14, 1993 (the "Receivables Purchase Agreement"). The Trust, in
turn, has issued an investor certificate in the principal amount of
$23,000,000 evidencing an undivided beneficial interest in the Trust.
In addition, the Servicer services the administration and collection
of the receivables and other assets so conveyed in accordance with the
provisions of the Pooling and Servicing Agreement.
ii. Pursuant to a First Amendment to Pooling and Servicing Agreement dated
as of December 16, 1994, the Seller, CLC and the Trustee amended and
supplemented the Pooling and Servicing Agreement to inter alia, (i)
extend the term of the Pooling and Servicing Agreement, (ii) provide
for the issuance of an additional investor certificate in the
principal amount of $2,000,000 and (iii) amend and modify certain
other terms and conditions of the Pooling and Servicing Agreement.
iii. Pursuant to a Second Amendment to Pooling and Servicing Agreement
dated as of December 30, 1996, the Seller, CLC and the Trustee amended
and supplemented the Pooling and Servicing Agreement to inter alia,
(i) further extend the term of the Pooling and Servicing Agreement,
(ii) provide for the issuance of another additional investor
certificate in the principal amount of $3,000,000, (iii) provide for
an additional originator, Fleet Transport Company, Inc., a Delaware
corporation, and (iv) amend and modify certain other terms and
conditions of the Pooling and Servicing Agreement.
iv. Pursuant to a Third Amendment to Pooling and Servicing Agreement dated
as of March 30, 1997, the Seller, CLC and the Trustee amended and
supplemented the Pooling and Servicing Agreement to inter alia, (i)
remove the early redemption option of the Seller with regard to the
investor certificates, and (ii) amend and modify certain other terms
and conditions of the Pooling and Servicing Agreement.
v. Pursuant to a Fourth Amendment to Pooling and Servicing Agreement
dated as of June 11, 1997, the Seller, CLC and the Trustee amended and
supplemented the Pooling and
Servicing Agreement to, (i) amend and modify the Required Net Worth
provision set forth in Section 3.5(e), and (ii) amend and modify the
Termination Event provision set forth in Section 9.1(i).
vi. Pursuant to a Fifth Amendment to Pooling and Servicing Agreement dated
as of December 31, 1997, the Seller, CLC and the Trustee amended and
supplemented the Pooling and Servicing Agreement to, (i) further amend
and modify the Required Net Worth provision in Section 3.5(e), and
(ii) further amend and modify the Termination Event provision set
forth in Section 9.1(i).
vii. The Seller, CLC and the Trustee desire to further amend and supplement
the Pooling and Servicing Agreement in order to provide for the
issuance of another additional investor certificate in the principal
amount of $5,000,000 as set forth herein.
IN CONSIDERATION of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree to the following:
VIII. Defined Terms. For purposes of this Sixth Amendment, except as otherwise
provided in this Sixth Amendment, capitalized terms not otherwise defined in
this Sixth Amendment shall have the meanings assigned to such terms in the
Pooling and Servicing Agreement, as amended and supplemented hereby.
IX. Amendments to Pooling and Servicing Agreement.
A. The following new definitions are hereby added to Section 1.1:
"Sixth Pooling and Servicing Amendment" shall mean the Sixth Amendment
to this Agreement dated as of December 31, 1997.
"1997 Additional Investor Certificate" shall mean the Investor
Certificate in the principal amount of $5,000,000 which the Investor
Certificateholder has agreed to purchase pursuant to the 1997 Certificate
Purchase Agreement.
"1997 Certificate Purchase Agreement" shall mean the Certificate
Purchase Agreement dated as of December 31, 1997 between the Seller and the
Investor Certificateholder, as the same may be amended, modified or supplemented
from time to time in accordance with its terms.
B. The definition "Investor's Percentage" in Section 1.1 is hereby amended
by adding the following language at the end of the definition:
"; and provided further from and after the date of the issuance of the
1997 Additional Investor Certificate, the numerator in such fraction
shall be increased from $28,000,000 to $33,000,000."
C. The following new Sections 2.14 and 2.15 are hereby added to the Pooling
and Servicing Agreement immediately after Section 2.13 thereof:
Section 2.14. Conditions Precedent to Issuance of 1997 Additional
Investor Certificate. The 1997 Additional Investor Certificate shall not be
issued until the conditions precedent set forth below are satisfied to the
reasonable satisfaction of the Trustee and the
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Investor Certificateholder Representative (in lieu of the conditions
precedent set forth in Section 2.8 and Section 2.10 hereof):
(a) The representations and warranties of the Seller, the Servicer and
each of the originators in the Transaction Documents shall be true and
correct in all material respects on and as of the date of issuance of the
1997 Additional Investor 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 1997 Additional Investor
Certificate, which would constitute a Termination Event under this
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.
Section 2.15. Distribution of Proceeds from Sale of 1997 Additional
Investor Certificate. All of the proceeds received by the Trustee in
connection with the sale of the 1997 Additional Investor Certificate shall
be allocated, first, to the Unallocated Principal Sub-Account, to the
extent required to increase the Seller Percentage to the Required Minimum
Seller Percentage; and second, to the Seller Sub-Account, for application
in accordance with Section 4.3 hereof.
D. The following new subsection (d) is hereby added to the Pooling and
Servicing Agreement immediately after Section 6.1(c) thereof as follows:
(d) The 1997 Additional Investor Certificate shall be issued
substantially in the form of Exhibit A to the Sixth Pooling and Servicing
Amendment. Upon the issuance of the 1997 Additional Investor Certificate,
the Existing Investor Certificates and Seller Certificate shall be
automatically amended as set forth in the forms of the amended and restated
Investor Certificates and Seller Certificate attached as Exhibits B, C, D
and E, respectively, to the Sixth Pooling and Servicing Amendment. Upon
surrender of the Existing Investor Certificates and Seller Certificate by
the holders thereof, the amended and restated Investor Certificates and
Seller Certificate shall be issued to such holders in exchange therefor.
X. Consent of Trustee. The Trustee hereby consents to this Sixth Amendment and
the transactions contemplated thereby.
XI. Effectiveness. The effectiveness of this Sixth Amendment is subject to the
following conditions.
A. The written consent of the Investor Certificateholder Representative,
substantially in the form attached to this Sixth Amendment as Exhibit F,
consenting to this Sixth Amendment and the transactions contemplated thereby.
B. The receipt of a letter, in form and substance reasonably satisfactory
to the Seller and the Investor Certificateholder Representative, from Duff
indicating that, after giving effect to this Sixth Amendment, each of the
Investor Certificates will have an "A" rating.
XII. Authorization/Ratification.
A. Each of the Seller, CLC and the Trustee represent and warrant that (i)
it has taken all action necessary to authorize it to execute, deliver and
perform this Sixth Amendment and (ii) each of this Sixth
3
Amendment and the Pooling and Servicing Agreement, as amended and supplemented
hereby, constitute a valid and legally binding obligation of it enforceable
against it in accordance with its terms, except as such enforceability may be
limited by Debtor Relief Laws.
B. As amended by this Sixth Amendment, the Pooling and Servicing Agreement
is hereby ratified and confirmed in all respects.
XIII. Governing Law. This Sixth Amendment shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania, excluding its
conflict of laws rules.
XIV. Counterparts. This Sixth Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page of this
Sixth Amendment by telecopy shall be effective as delivery of a manually
executed counterpart of this Sixth Amendment.
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IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Sixth Amendment to Pooling and Servicing Agreement as of the
first date written above.
Attest: PICKERING WAY FUNDING CORP.
By: /s/ Eugene C. Parkerson By: /s/ David M. Boucher
---------------------------- ---------------------------------
Name: Eugene C. Parkerson Name: David M. Boucher
Title: Vice President Title: Vice President
Attest: CHEMICAL LEAMAN CORPORATION
By: /s/ Eugene C. Parkerson By: /s/ David M. Boucher
---------------------------- ---------------------------------
Name: Eugene C. Parkerson Name: David M. Boucher
Title: Vice President Title: Vice President
Attest: FIRST UNION NATIONAL BANK, as Trustee
By: /s/ David Leondi By: /s/ John Clapham
---------------------------- ---------------------------------
Name: David Leondi Name: John Clapham
Title: Vice President Title: Vice President
5
Transamerica Life Insurance and Annuity Company
1150 S. Olive Street
Los Angeles, CA 90015
Dated as of December 31, 1997
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 -
Sixth Amendment to Pooling and Servicing Agreement
Ladies and Gentlemen:
As the Investor Certificateholder Representative under the Pooling and
Servicing Agreement dated as of May 14, 1993, as amended, among Pickering Way
Funding Corp., a Delaware corporation, Chemical Leaman Corporation, a
Pennsylvania corporation, and First Union National Bank, as Trustee (the
"Pooling and Servicing Agreement"), Transamerica Life Insurance and Annuity
Company hereby consents to the Sixth Amendment to the Pooling and Servicing
Agreement in the form attached hereto as Exhibit A.
Very truly yours,
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By: /s/ John Casparian
---------------------------------
Name: John Casparian
Title: Vice President
A-1
SEVENTH AMENDMENT TO
POOLING AND SERVICING AGREEMENT
This SEVENTH AMENDMENT TO PICKERING WAY FUNDING TRUST POOLING AND SERVICING
AGREEMENT (the "Seventh Amendment") is made as of December 31, 1997, by and
among Pickering Way Funding Corp., a Delaware corporation (the "Seller"),
Chemical Leaman Corporation, a Pennsylvania corporation ("CLC" and, in its
capacity as Servicer, sometimes referred to herein as "Servicer"), and First
Union National Bank, a national banking association, as successor to First
Fidelity Bank, National Association, successor to Fidelity Bank, National
Association, in its capacity as Trustee (the "Trustee").
Background
The Seller, CLC and the Trustee are parties to a Pooling and Servicing
Agreement dated as of May 14, 1993 (as amended from time to time, including by
this Seventh Amendment, the "Pooling and Servicing Agreement"). Pursuant to the
Pooling and Servicing Agreement, the Seller conveys to a trust (the "Trust")
certain trade receivables and related assets acquired from Chemical Leaman Tank
Lines, Inc., Quala Systems, Inc. and Fleet Transport Company, Inc.
(collectively, the "Originators") under a Receivables Contribution and Purchase
Agreement among the Originators, the Seller and CLC dated as of May 14, 1993 (as
amended from time to time, the "Receivables Purchase Agreement"). The Trust has
issued certificates evidencing undivided beneficial interests in the Trust to an
investor. In addition, the Servicer services the administration and collection
of the receivables and other assets so conveyed in accordance with the
provisions of the Pooling and Servicing Agreement. The Seller, CLC and the
Trustee desire to amend the Pooling and Servicing Agreement as set forth herein.
IN CONSIDERATION of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree to the following:
XV. Defined Terms. For purposes of this Seventh Amendment, except as otherwise
provided in this Seventh Amendment, capitalized terms not otherwise defined in
this Seventh Amendment shall have the meanings assigned to such terms in the
Pooling and Servicing Agreement, as amended.
XVI. Amendments to Pooling and Servicing Agreement.
A. The following new definition is hereby added to Section 1.1:
"Seventh Pooling and Servicing Amendment" shall mean the Seventh
Amendment to this Agreement dated as of December 31, 1997.
B. The Required Net Worth provision in Section 3.5(l) is hereby amended by
deleting the amount $14,000,000 and substituting in its place the amount
$7,000,000.
C. The Termination Event provision set forth in Section 9.1 (i) is hereby
deleted in its entirety and in its place is substituted the following language:
(i) CLC fails to maintain (i) an average Fixed Charge Ratio of at
least 1.75 to 1 for any (12) consecutive Accounting Periods, or
(ii) a minimum Consolidated Shareholders Equity of at least
$7,000,000;
D. The Termination Event provision set forth in Section 9.1(f) is hereby
amended by the addition of the following language at the end of such provision:
or Messrs. David R. Hamilton, George McFadden, John McFadden,
members of their immediate families and trusts they control for
the benefit of members of their immediate families shall own, in
the aggregate, beneficially and of record, less than thirty
percent (30%) of the outstanding common stock of CLC;
XVII. Waiver. The requirement of Section 9.1(i)(i) of the Pooling and Servicing
Agreement that CLC maintain an average Fixed Charge Coverage Ratio of at least
1.75 to 1 for any twelve (12) consecutive Accounting Periods is hereby waived
through December 31, 1998, with such requirement to be reinstated January 1,
1999.
XVIII. Consent of Trustee. The Trustee hereby consents to this Seventh
Amendment.
XIX. Effectiveness. The effectiveness of this Seventh Amendment is subject to
the following conditions:
A. The written consent of the Investor Certificateholder Representative,
substantially in the form attached to this Seventh Amendment as Exhibit A,
consenting to this Seventh Amendment.
XX. Authorization/Ratification.
A. Each of the Seller, CLC and the Trustee represent and warrant that (i)
it has taken all action necessary to authorize it to execute, deliver and
perform this Seventh Amendment and (ii) each of this Seventh Amendment and the
Pooling and Servicing Agreement, as amended hereby, constitutes a valid and
legally binding obligation of it enforceable against it in accordance with its
terms, except as such enforceability may be limited by Debtor Relief Laws.
B. The Pooling and Servicing Agreement, as amended by this Seventh
Amendment, is hereby ratified and confirmed in all respects.
2
XXI. Governing Law. This Seventh Amendment shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania, excluding its
conflict of laws rules.
XXII. Counterparts. This Seventh Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page of this
Seventh Amendment by telecopy shall be effective as delivery of a manually
executed counterpart of this Seventh Amendment.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Seventh Amendment to Pooling and Servicing Agreement as of the
first date written above.
CHEMICAL LEAMAN CORPORATION PICKERING WAY FUNDING CORP.
By: /s/ David M. Boucher By: /s/ David M. Boucher
------------------------- ---------------------------------
Name: David M. Boucher Name: David M. Boucher
Title: Vice President Title: Vice President
FIRST UNION NATIONAL BANK, as
Trustee
By: /s/ Alan Finn
---------------------------------
Name: Alan Finn
Title: Assistant Vice President
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Transamerica Life Insurance and Annuity Company
1150 S. Olive Street
Los Angeles, CA 90015
Dated as of December 31, 1997
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 -
Seventh Amendment to Pooling and Servicing Agreement
Ladies and Gentlemen:
As the Investor Certificateholder Representative under the Pooling and
Servicing Agreement dated as of May 14, 1993, as amended, among Pickering Way
Funding Corp., a Delaware corporation, Chemical Leaman Corporation, a
Pennsylvania corporation, and First Union National Bank, successor to First
Fidelity Bank, National Association (as successor to Fidelity Bank, National
Association), as Trustee (the "Pooling and Servicing Agreement"), Transamerica
Life Insurance and Annuity Company hereby consents to the Seventh Amendment to
the Pooling and Servicing Agreement in the form attached hereto as Exhibit A.
Very truly yours,
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By: /s/ John Casparian
---------------------------------
Name: John Casparian
Title: Investment Officer
A-1