1
EXHIBIT 10.11
EXECUTION COPY
TRICON RECEIVABLES
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SERIES 1998-1 SUPPLEMENT
TO POOLING AND SERVICING AGREEMENT
among
AMERISERVE FUNDING CORPORATION,
as Transferor,
AMERISERVE FOOD DISTRIBUTION, INC.,
as initial Servicer,
and
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
Dated as of July 28, 1998
AMERISERVE RECEIVABLES MASTER TRUST
FLOATING RATE VARIABLE FUNDING CERTIFICATES, SERIES 1998-1
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS; INCORPORATION OF TERMS
SECTION 1.1 Definitions..............................................................1
SECTION 1.2 Incorporation of Terms..................................................15
ARTICLE II DESIGNATION
SECTION 2.1 Designation.............................................................16
ARTICLE III CONDITIONS TO ISSUANCE; USE OF PROCEEDS
SECTION 3.1 Conditions to Issuance..................................................16
SECTION 3.2 Use of Proceeds.........................................................16
ARTICLE IV PAYMENTS AND ALLOCATIONS
SECTION 4.1 Interest; Additional Amounts............................................16
SECTION 4.2 Daily Calculations and Series Allocations...............................17
SECTION 4.3 Allocations of Daily Series Collections (Other Than
in an Amortization Period)..............................................17
SECTION 4.4 Allocations of Daily Series Collections During
an Amortization Period..................................................18
SECTION 4.5 Withdrawals from the Equalization Account...............................19
SECTION 4.6 [Reserved]..............................................................19
SECTION 4.7 Write-Offs and Recoveries...............................................20
SECTION 4.8 [Reserved]..............................................................20
SECTION 4.9 Tax Opinion.............................................................20
ARTICLE V DISTRIBUTIONS AND REPORTS
SECTION 5.1 Distributions...........................................................20
SECTION 5.2 Payments in Respect of Transferor Certificate...........................22
SECTION 5.3 Daily Reports and Monthly Reports.......................................22
SECTION 5.4 Annual Tax Information..................................................23
SECTION 5.5 Periodic Perfection Certificate.........................................23
ARTICLE VI EARLY AMORTIZATION EVENTS
SECTION 6.1 Early Amortization Events...............................................24
SECTION 6.2 Early Amortization Period...............................................28
ARTICLE VII OPTIONAL REDEMPTION; INDEMNITIES
SECTION 7.1 Optional Redemption of Investor Interests...............................28
SECTION 7.2 Indemnification by Transferor...........................................29
SECTION 7.3 Indemnification by Servicer.............................................30
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ARTICLE VIII MISCELLANEOUS
SECTION 8.1 Amendment, Waiver, Etc..................................................30
SECTION 8.2 Trustee.................................................................31
SECTION 8.3 Instructions in Writing.................................................31
SECTION 8.4 Rule 144A...............................................................31
SECTION 8.5 Supplemental Ratings Requirement........................................31
SECTION 8.6 Waiver..................................................................31
SECTION 8.7 Negotiations............................................................32
SECTION 8.8 Transfers of Series 1998-1 Certificates.................................32
SECTION 8.9 Incorporation by Reference..............................................32
SECTION 8.10 Survival of Agreement...................................................32
SECTION 8.11 Agent...................................................................32
SECTION 8.12 Notices to Rating Agencies..............................................32
EXHIBITS
EXHIBIT A Form of Series 1998-1 Certificate
EXHIBIT B Form of Daily Report
EXHIBIT C Form of Monthly Report
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This SERIES 1998-1 SUPPLEMENT, dated as of July 28, 1998 (this
"Supplement"), is made among AMERISERVE FUNDING CORPORATION, a Delaware
corporation, as Transferor, AMERISERVE FOOD DISTRIBUTION, INC., a Delaware
corporation, as initial Servicer, and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association, as Trustee.
PRELIMINARY STATEMENT
Pursuant to the Amended and Restated Pooling and Servicing Agreement,
dated as of July 28, 1998 (as it may be amended, amended and restated,
supplemented or otherwise modified from time to time, and as supplemented
hereby, the "Pooling Agreement"), among Transferor, Servicer and Trustee,
Transferor may from time to time direct Trustee to issue and authenticate, on
behalf of the Trust, one or more Series of Certificates. Certain terms
applicable to a Series are to be set forth in a Supplement. This Supplement is
a "Supplement" as that term is defined in the Pooling Agreement.
Pursuant to this Supplement, Transferor and Trustee shall create a
Series of Certificates ("Series 1998-1") and specify certain of the terms of
such Series.
ARTICLE I DEFINITIONS; INCORPORATION OF TERMS
SECTION 1.1 Definitions. (a) Capitalized terms used and not otherwise
defined herein are used as defined in Appendix A to the Pooling Agreement. This
Supplement shall be interpreted in accordance with the conventions set forth in
Part B of that Appendix A.
(b) Each reference in this Supplement to funds on deposit in the
Carrying Cost Account, the Equalization Account or the Principal Funding
Account (or similar phrase) refers only to funds in the administrative
sub-accounts of those accounts that are allocated to Series 1998-1. Unless the
context otherwise requires, in this Supplement and the Certificate Purchase
Agreement: (i) each reference to a "Daily Report" or "Monthly Report" refers to
a Daily Report or Monthly Report for the Series 1998-1 Certificates; (ii) each
reference to the "Servicing Fee" refers to the Servicing Fee allocable to
Series 1998-1; and (iii) each reference to the Transaction Documents shall
include a reference to the Certificate Purchase Agreement.
(c) Each capitalized term defined below relates only to the Series
1998-1 Certificates and to no other Series of Certificates. Whenever used in
this Supplement, the following words and phrases shall have the following
meanings:
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"ABR Tranche" means, at any time, any portion (which may be 100%) of
the Aggregate Invested Amount that is so designated by Transferor in accordance
with the Certificate Purchase Agreement.
"Additional Amounts" means amounts payable pursuant to Sections 4.2,
4.3, 4.5, 4.6 and 10.5 of the Certificate Purchase Agreement, whether or not
such sections refer to "Additional Amounts".
"Adjusted Eligible Receivables" means, on any Business Day, the result
of (a) the aggregate Unpaid Balance of Eligible Receivables on that day, minus
(b) the Unapplied Cash on that day, in each case as reflected in the Daily
Report for that Business Day, plus (c) the Aggregate Retained Balances.
"Agent" means Bank of America in its capacity as Agent under the
Certificate Purchase Agreement, together with its successors in that capacity.
The Agent is an "Agent" with respect to Series 1998-1 for purposes of the
Pooling Agreement.
"Aggregate Invested Amount" means, as of any date of determination,
the sum of the Invested Amounts of all Series 1998-1 Certificateholders.
"Aggregate Retained Balances" means, on any Business Day, the
aggregate of the balances relating to Tricon Receivables retained in Lockbox
Accounts or Blocked Accounts for items in the process of collection but for
which funds have not been made available by the related Lockbox Bank or Blocked
Account Bank, provided that (i) no notice of insufficient funds or similar
situation shall exist with respect thereto and (ii) the Unpaid Balance of
Tricon Receivables shall have been reduced by an amount equal to such balances.
"Alternate Base Rate" means, on any day, a fluctuating rate of
interest per annum equal to the higher of:
(a) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America in San Francisco,
California, as its "reference rate", and
(b) the Federal Funds Rate.
The "reference rate" is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as reference point for pricing some
loans, which may be priced at, above, or below such announced rate.
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Any change in the reference rate announced by Bank of America shall
take effect without prior notice to any Person at the opening of business on
the day specified in the public announcement of such change.
"AmeriServe Credit Agreement" means the Third Amended and Restated
Credit Agreement dated as of May 21, 1998 among AmeriServe, Bank of America, as
Administrative Agent and Letter of Credit Issuing Lender, Donaldson, Lufkin &
Jenrette Securities Corporation, as Documentation Agent, and the other
financial institutions party thereto.
"Amortization Period" means the period (x) beginning on the earliest
of (i) the date on which a Termination of Sale Notice is given pursuant to
Section 8.1 of the Purchase Agreement, (ii) the date which is the fifth
anniversary of the First Issuance Date and (iii) the date, if any, on which an
Early Amortization Period commences, and (y) ending on the earlier of (i) the
Final Scheduled Payment Date and (ii) the date on which this Supplement shall
have terminated pursuant to Section 8.10.
"Applicable Ratings Factor" means 2.0.
"Applicable Reserve Ratio" means, during any Distribution Period, the
greater of (a) the Minimum Required Reserve Ratio and (b) the Required Reserve
Ratio, in each case as calculated in the Monthly Report required to be
delivered on the Report Date immediately prior to the start of that
Distribution Period.
"Assignee" is defined in Section 10.3(c) of the Certificate Purchase
Agreement.
"Attorney Costs" has the meaning set forth in Appendix A to the
Pooling Agreement, except that such term also shall include the allocated cost
of internal legal services, and all disbursements of internal counsel, of each
Series 1998-1 Certificateholder and the Agent.
"Bank of America" means Bank of America National Trust and Savings
Association.
"Base Amount" means, on any Business Day, the result of the following
formula:
NER - ROCA
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where:
NER = the Net Eligible Receivables as reported in the Daily Report for
that Business Day; and
ROCA = the Required Overcollateralization Amount as reported in the Daily
Report for that Business Day.
"Carrying Cost Cash Reserve Amount" means an amount equal to the
Current Carrying Costs.
"Carrying Cost Receivables Reserve" means, on any Business Day, the
result of:
(a) the Current Carrying Costs; plus
(b) the product of (i) the Aggregate Invested Amount,
multiplied by (ii) (A) 1.5 times (B) the result of (x) the Certificate
Rate minus (y) the Commitment Fee Percentage, multiplied by (iii) a
fraction the numerator of which is the product of 2.0 and the number
of Turnover Days and the denominator of which is 360; plus
(c) the product of (i) the Commitment Fee Percentage,
multiplied by (ii) (A) 1.5 times (B) the aggregate Stated Amounts,
multiplied by (iii) a fraction the numerator of which is the product
of 2.0 and the number of Turnover Days and the denominator of which is
360; plus
(d) the product of (i) the aggregate Unpaid Balance of Tricon
Receivables on such Distribution Date, multiplied by (ii) 2%,
multiplied by (iii) a fraction the numerator of which is the product
of 2.0 and the number of Turnover Days and the denominator of which is
360; plus
(e) the product of (i) $50,000, multiplied by (ii) a
fraction, the numerator of which is the product of 1.5 times the
number of Turnover Days and the denominator of which is 360; minus
(f) the balance on deposit in the Carrying Cost Account at
the beginning of that Business Day.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement dated as of the Closing Date among Transferor, AmeriServe, the Series
1998-1 Certificateholders and Bank of America, as the Agent, as the same may be
amended, amended and restated or otherwise modified from time to time in
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accordance with its terms. The Certificate Purchase Agreement is hereby
designated a "Transaction Document".
"Certificate Rate" means, at any time, the weighted average of the
interest rates on all outstanding Tranches.
"Certificate Spread" means: (A) if Tricon has a senior public
unsecured debt rating from each of the Rating Agencies of at least "BBB" or
higher, the Certificate Spread shall be .750% per annum; (B) if Tricon has a
senior public unsecured debt rating from each of the Rating Agencies of "BBB-",
the Certificate Spread shall be 1.00% per annum; (C) if Tricon has a senior
public unsecured debt rating from each of the Rating Agencies of at least "BB"
but less than "BBB-", the Certificate Spread shall be 1.40% per annum; (D) if
Tricon has a senior public unsecured debt rating from each of the Rating
Agencies of "BB-", the Certificate Spread shall be 1.75% per annum; and (E) if
Tricon has a senior public unsecured debt rating from each of the Rating
Agencies of "B+" or has a senior public unsecured debt rating from any of the
Rating Agencies below "B+" or if Tricon does not have a senior public unsecured
debt rating from each of the Rating Agencies, the Certificate Spread shall be
2.00% per annum; provided, however that Trustee shall not be responsible for
determining the senior public unsecured debt rating of Tricon.
"Closing Date" means July 30, 1998.
"Commitment Fee" is defined in Section 4.2 of the Certificate Purchase
Agreement.
"Commitment Fee Percentage" means the percentage set forth in Section
4.2 of the Certificate Purchase Agreement.
"Commitment Fee Reserve Amount" means, for each Calculation Period,
the product of (a) the aggregate Stated Amounts, multiplied by (b) the
Commitment Fee Percentage, multiplied by (c) a fraction (i) the numerator of
which is the actual number of days in such Calculation Period and (ii) the
denominator of which is 360.
"Current Carrying Costs" means, during any Distribution Period, an
amount equal to the sum of (i) the amount of interest (including additional
interest pursuant to Section 4.1(d)) on the Series 1998-1 Certificates and the
amount of the Servicing Fee that shall be payable on the next Distribution
Date, plus (ii) accrued and unpaid expenses described in Section 7.2(l)(C) of
the Pooling Agreement, plus (iii) the Monthly Trustee Payment Amount, plus (iv)
accrued and unpaid Transition Costs, plus (v) the Commitment Fee Reserve
Amount.
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"Daily Series Collections" is defined in Section 4.2.
"Dilution Horizon Variable" means, at any time, a fraction having (a)
a numerator equal to the sum of the aggregate amounts payable pursuant to
invoices giving rise to Tricon Receivables and generated by the Sellers (other
than ProSource) during the Calculation Period ending on the most recent Cut-Off
Date (as of that Cut-Off Date) and (b) a denominator equal to the Net Eligible
Receivables as of such Cut-Off Date.
"Dilution Ratio" means, as calculated by the Servicer and provided in
each Monthly Report as of the most recent Cut-Off Date, a fraction (expressed
as a percentage) having (a) a numerator equal to the aggregate amount of
Dilution on the Tricon Receivables occurring during the Calculation Period
ending on the most recent Cut-Off Date, and (b) a denominator equal to the
aggregate amounts payable pursuant to invoices giving rise to Tricon
Receivables that were generated by the Sellers (other than ProSource) during
the Calculation Period ending on the second most recent Cut-Off Date.
"Dilution Reserve Ratio" means, as calculated by the Servicer and
provided in each Monthly Report, the result (expressed as a percentage)
calculated in accordance with the following formula:
{(ARF x ADR) + [(HDR-ADR) x (HDR/ADR)]} x DHV
where:
ADR = the average of the Dilution Ratios during the period of 12
consecutive Calculation Periods ending on the related Cut-Off
Date;
ARF = the Applicable Ratings Factor;
DHV = the Dilution Horizon Variable; and
HDR = the highest Dilution Ratio as of the end of any of the 12
consecutive Calculation Periods ending on the related Cut-Off
Date.
"Dilution Reserve Ratio (Z-value)" means, as calculated by the
Servicer and provided in each Monthly Report, the result (expressed as a
percentage) calculated in accordance with the following formula:
[(ARF x ADR) + (Z-value x SD)] x DHV
where:
ADR = the average of the Dilution Ratios during the period of 12
consecutive Calculation Periods ending on the related Cut-Off
Date;
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ARF = the Applicable Ratings Factor;
DHV = the Dilution Horizon Variable; and
SD = the sample standard deviation, during the period of 12
consecutive Calculation Periods ending on the related Cut-Off
Date, of the Dilution Ratio.
"Early Amortization Calculation Date" means the day before an Early
Amortization Period begins.
"Early Amortization Event" is defined in Section 6.1.
"Early Amortization Period" means the period beginning on the
applicable date determined in accordance with Section 6.2 and ending on the day
on which the Aggregate Invested Amount has been reduced to zero.
"Eligible Receivable" shall have the meaning set forth in Appendix A
to the Pooling Agreement, except that: (a) no Receivable shall be an Eligible
Receivable unless Tricon is the Obligor of such Receivable; (b) no Receivable
shall be an Eligible Receivable if (x) a State Tax Opinion Request (defined
below) has been made with respect to the related Servicing Jurisdiction
(defined below) and (y) the Agent shall not have notified the Servicer in
writing that the Agent is satisfied with the related State Tax Opinion (defined
below), it being understood that the Agent has the right in its sole discretion
to decide whether or not to give such notice (and whether or not to make any
State Tax Opinion Request), and the giving of any such notice shall not limit
the rights and remedies otherwise available to the Trustee, the Agent, the
Series 1998-1 Certificateholders, any Affected Party or any Indemnitee under
the Transaction Documents or applicable law; and (c) no ProSource Receivable
shall be an Eligible Receivable.
As used in the previous sentence:
"Servicing Jurisdiction" means a state in which the Servicer
or a Sub-Servicer conducts some or all of its servicing,
administration or collection operations in respect of Receivables, and
the "related" Servicing Jurisdiction with respect to a Receivable
means the Servicing Jurisdiction from which such Receivable is
serviced, administered or collected.
"State Tax Opinion" means a written opinion of counsel,
addressed to the Trustee, the Agent, the Rating Agencies and the
Series 1998-1 Certificateholders, and in form and substance (and from
counsel) satisfactory to the Agent and the Rating Agencies, to the
effect that, for purposes of state income and franchise tax purposes
in the relevant Servicing Jurisdiction, (i) the Trust shall not be
subject to any income,
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franchise or entity level tax, and (ii) the Series 1998-1 Certificates
shall be characterized as debt or partnership interests.
"State Tax Opinion Request" means a written request from the
Agent to the Servicer requesting the Servicer to cause a State Tax
Opinion to be rendered.
"Eurodollar Tranche" means, during any Interest Period, any portion of
the Aggregate Invested Amount that is so designated by Transferor in accordance
with the Certificate Purchase Agreement.
"Expected Final Payment Date" means the Distribution Date in August
2003.
"Exposure" is defined in Section 10.3 of the Certificate Purchase
Agreement.
"Federal Funds Rate" means, on any day, (a) the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if the day is not a Business Day, for the immediately preceding Business
Day) by the Federal Reserve Bank of New York, plus (b) 100 basis points;
provided that if the rate set forth in clause (a) above is not so published for
any Business Day, the rate for purposes of such clause (a) shall be the average
of the quotations for the day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by it.
"Final Scheduled Payment Date" means the Distribution Date in August
2004.
"Guarantor" means AmeriServe, in its capacity as the guarantor under
the Seller Guaranty.
"Holder" means a Holder (as defined in the Pooling Agreement) of a
Series 1998-1 Certificate.
"Increase" is defined in Section 2.2 of the Certificate Purchase
Agreement.
"Increase Amount" is defined in Section 2.2 of the Certificate
Purchase Agreement.
"Indemnitee" is defined in Section 10.5 of the Certificate Purchase
Agreement.
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"Initial Aggregate Invested Amount" means (a) at any time during the
Revolving Period, the Aggregate Invested Amount at that time and (b) at any
other time, the Aggregate Invested Amount at the end of the Revolving Period.
"Intercreditor Agreement" means the Intercreditor Agreement dated as
of July 11, 1997 between the Trustee and the Administrative Agent under the
AmeriServe Credit Agreement, as such Intercreditor Agreement may be amended,
amended and restated or otherwise modified from time to time in accordance with
its terms.
"Intercreditor Provisions" means the following provisions of the
AmeriServe Credit Agreement: Sections 5.5, 9.1(n), 9.2(g), 9.2(h), 9.3(d),
9.4(e), 9.4(f), 9.5(l), 9.6(a), 9.8(e), 9.16, 9.21 and the definitions of
"Intercreditor Agreement", "Joint Venture", "Pooling and Servicing Agreement",
"Purchase Money Note", "Qualified Receivables Transaction", "Receivable Stated
Amount", "Receivables", "Receivables Bridge Facilities", "Receivables
Documents", "Receivables Financing Costs", "Receivables Investor Instruments",
"Receivables Program Assets", "Receivables Program Obligations", "Receivables
Related Assets", "Receivables Seller", "Receivables Subsidiary", "Special
Purpose Vehicle", "Standard Securitization Undertakings", and "Subsidiary".
"Interest Period" means the period from the Closing Date to the first
subsequent Distribution Date and each Distribution Period thereafter.
"Invested Amount" means, at any time, with respect to a Series 1998-1
Certificateholder, the result of (a) the aggregate amount of increases in such
Series 1998-1 Certificateholder's Invested Amount pursuant to the Certificate
Purchase Agreement at or prior to such time, less (b) the aggregate amount of
all distributions that have been made to such Series 1998-1 Certificateholder
on account of principal (provided that the Invested Amount shall never be
reduced below zero); it being understood that a Series 1998-1 Certificateholder
may assign some or all of its Invested Amount in accordance with the terms of
the Certificate Purchase Agreement and that the Invested Amounts of the
assignor Series 1998-1 Certificateholder and the assignee Series 1998-1
Certificateholder shall be adjusted accordingly.
"Investor Allocation Percentage" means:
(a) on any Business Day falling in the Revolving Period, a
fraction (expressed as a percentage, which in any event may not exceed
100%) (i) the numerator of which is the Net Invested Amount as of that
Business Day, and (ii) the denominator of which is the Base Amount as
of that Business Day; and
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(b) on any Business Day falling in the Amortization Period or
an Early Amortization Period, a fraction (expressed as a percentage,
which in any event may not exceed 100%) (i) the numerator of which is
the Net Invested Amount as of the first day of the Amortization Period
or the Early Amortization Calculation Date, as applicable, and (ii)
the denominator of which is the Base Amount as of the first day of the
Amortization Period or the Early Amortization Calculation Date, as
applicable.
"Investor Repayment Amount" means, on any Business Day falling in the
Amortization Period or an Early Amortization Period, the sum of (a) the
Aggregate Invested Amount, plus (b) the aggregate amount of accrued and unpaid
interest (including additional interest contemplated by Section 4.1) in respect
of the Series 1998-1 Certificates, plus (c) any Additional Amounts and other
obligations known to be payable on or before the first Distribution Date
falling after that date.
"LIBOR Office" is defined in Section 4.3(a) of the Certificate
Purchase Agreement.
"Minimum Required Reserve Ratio" means 10%.
"Monthly Trustee Payment Amount" means the sum of (i) the dollar
amount specified in the fee schedule delivered by Trustee to the Servicer and
the Agent on or prior to the Closing Date, as modified from time to time with
the prior written consent of the Servicer and the Agent, plus (ii) any
reasonable and documented out-of-pocket expenses incurred by Trustee in the
administration of its duties hereunder; provided that the Monthly Trustee
Payment Amount shall not exceed $5,000 for any month.
"Net Eligible Receivables" means, at any time, the positive difference
of (a) the Adjusted Eligible Receivables, minus (b) the sum of (i) the
aggregate amount paid by Tricon to the Sellers in respect of any "cash in
advance" or "cash on account" arrangement and which has not been applied
against goods shipped to such Obligors, plus (ii) the PACA Amount with respect
to Tricon Receivables, plus (iii) the aggregate amount of sales tax included in
the Unpaid Balances of the Tricon Receivables, plus (iv) the aggregate amount
of royalties, advertising fees or marketing fees included in the calculation of
the Unpaid Balances of the Tricon Receivables, plus (v) the aggregate rebilled
amount of all Debit Memos included in the calculation of the Unpaid Balances of
the Tricon Receivables, plus (vi) the aggregate of amounts payable by Sellers
in respect of the "SmartSource" program.
"Net Invested Amount" means, on any Business Day, the positive
difference (if any) of (a) the Aggregate Invested Amount, minus (b) the
aggregate balance on deposit in the Equalization Account and the Principal
Funding Account.
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"One-Month LIBOR" means, for any Interest Period, the rate per annum,
determined by the Agent and notified in writing by the Agent to Trustee, which
is the arithmetic mean (rounded to the nearest 1/100 of 1%) of the offered
rates for dollar deposits having a maturity of one month commencing on the
first day of such Interest Period that appears on the Telerate British Bankers
Assoc. Interest Settlement Rates Page (defined below) at approximately 11:00
a.m., London time on the second full Business Day prior to such date; provided,
however, that if there shall at any time no longer exist a Telerate British
Bankers Assoc. Interest Settlement Rates Page, "One-Month LIBOR" shall mean the
rate per annum equal to the average rate at which the principal London office
of Bank of America is offered dollar deposits at or about 10:00 a.m., New York
City time, two Business Days prior to the first Business Day of such Interest
Period in the London eurodollar interbank market for delivery on the first day
of such Interest Period for one month and in a principal amount equal to an
amount of not less than $1,000,000. As used herein, "Telerate British Bankers
Assoc. Interest Settlement Rates Page" means the display designated as Page
3750 on the Telerate System Incorporated Service (or such other page as may
replace such page on such service for the purpose of displaying the rates at
which dollar deposits are offered by leading banks in the London interbank
deposit market), as reported by Bloomberg Financial Markets Commodities News
(or by another source selected by the Agent).
"PACA Amount" at any time means the aggregate amount of obligations
then owed by the Sellers to any Persons that may be entitled to make a claim
for payment thereof pursuant to PACA.
"Participants" is defined in Section 10.3 of the Certificate Purchase
Agreement.
"Payment Term" means, with respect to any Tricon Receivable, the
number of days between its invoice date and its due date.
"Payment Term Multiplier" means one.
"Percentage" is defined in Section 2.1 of the Certificate Purchase
Agreement.
"Permitted Transferee" is defined in Section 10.3(c) of the
Certificate Purchase Agreement.
"PFS" means the unincorporated food distribution business of PepsiCo,
Inc. known as PFS that AmeriServe acquired from PepsiCo, Inc. in July, 1997.
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"Principal Payment Date" means (i) any date on which the Aggregate
Invested Amount is to be reduced pursuant to Section 3.1 of the Certificate
Purchase Agreement, and (ii) any Distribution Date falling in an Amortization
Period with respect to Series 1998-1 (beginning with the Distribution Date
falling in the Calculation Period after the Calculation Period in which the
Amortization Period begins).
"ProSource" means ProSource Services Corporation, a Delaware
corporation.
"ProSource Receivable" means a Receivable that was originated by
ProSource. For the avoidance of doubt, no Receivable shall be a ProSource
Receivable if the Obligor of such Receivable is Tricon.
"Receivables Review" is defined in Section 8.1(d) of the Certificate
Purchase Agreement.
"Required Overcollateralization Amount" means, on any Business Day,
the result of the following formula:
RR - AIA + [CCRR x (1/1-ARR)]
where:
AIA = the Aggregate Invested Amount in effect for that Business Day;
ARR = the Applicable Reserve Ratio in effect for that Business Day;
CCRR = the Carrying Cost Receivables Reserve as reported in the Daily
Report for that Business Day; and
RR = the Required Receivables in effect for that Business Day.
"Required Receivables" means, on any Business Day, the result of the
following formula:
IA
-------
(1-ARR)
where:
ARR = the Applicable Reserve Ratio in effect for that Business Day;
and
IA = the Initial Aggregate Invested Amount.
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"Required Reserve Ratio" means, as calculated in each Monthly Report,
the greater of (a) the Dilution Reserve Ratio, and (b) the Dilution Reserve
Ratio (Z-value).
"Required Series Holders" means the Required Series 1998-1
Certificateholders.
"Required Series 1998-1 Certificateholders" is defined in Section 9.9
of the Certificate Purchase Agreement.
"Reserve-Adjusted Eurodollar Rate" means, for any Interest Period, the
rate per annum obtained by dividing (i) One-Month LIBOR for such Interest
Period by (ii) a percentage equal to 100%, minus the stated maximum rate of all
reserve requirements (including any marginal, emergency, supplemental, special
or other reserves) applicable on such second preceding Business Day to any
member bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" as defined in Regulation D of the Federal Reserve Board (or any
successor category of liabilities under Regulation D).
"Revolving Period" means the period beginning (a) on the Closing Date
and (b) ending on the day before the first day of the Amortization Period.
"Series 1998-1" is defined in the preamble.
"Series 1998-1 Certificateholders" means the Holders of the Series
1998-1 Certificates.
"Series 1998-1 Certificates" means any of the Investor Certificates
issued pursuant to this Supplement, each of which shall be substantially in the
form of Exhibit A.
"Servicing Fee" with respect to Series 1998-1 shall be calculated as
follows:
At any time when any AmeriServe Person is Servicer, the Servicing Fee
for any Distribution Period shall be equal to one-twelfth of the product of (a)
2%, multiplied by (b) the aggregate Unpaid Balance of all Tricon Receivables,
as measured on the first Business Day of that Distribution Period.
The Servicing Fee for a Successor Servicer that is not an AmeriServe
Person shall be an amount equal to the greater of (i) the amount calculated
pursuant to the preceding sentence and (ii) an alternative amount specified by
such Servicer not exceeding the sum of (x) 110% of the aggregate reasonable
costs and
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expenses incurred by such Servicer during such Distribution Period in
connection with the performance of its obligations under the Transaction
Documents, and (y) the other costs and expenses that are to be paid out of the
Servicing Fee, as described in the Pooling Agreement; provided that the amount
provided for in clause (x) shall not exceed one-twelfth of 2% of the aggregate
Unpaid Balance of the Tricon Receivables as measured on the first Business Day
of the Distribution Period.
"Stated Amount" means as to any Series 1998-1 Certificate and any date
of determination, the maximum principal amount that may be required to be
funded as of such date by the Holder of such Series 1998-1 Certificate.
"Tax Opinion" is defined in Section 4.9.
"Taxes" is defined in Section 4.6 of the Certificate Purchase
Agreement.
"Tranche" means each of the ABR Tranche and each Eurodollar Tranche.
"Transferee" is defined in Section 10.3(d) of the Certificate Purchase
Agreement.
"Transferor Indemnified Losses" is defined in Section 7.2.
"Transferor Indemnified Party" is defined in Section 7.2.
"Transferor Payment Percentage" means, on any Business Day, the
difference of 100% minus the Investor Allocation Percentage on that Business
Day.
"Transition Costs" is defined in Section 10.2(b) of the Pooling
Agreement.
"Tricon" means Tricon Global Restaurants, Inc., a North Carolina
corporation.
"Tricon Collections" means all funds that are received by any Seller,
Transferor, Servicer or Trustee from or on behalf of Tricon in payment of any
amounts owed (including invoice prices, finance charges, interest and all other
charges, if any) in respect of any Tricon Receivable or any Related Asset
relating thereto, or any other funds otherwise applied to repay or discharge
any such Tricon Receivable (including insurance payments that any Seller,
Transferor or Servicer applies in the ordinary course of its business to
amounts owed in respect of such Tricon Receivable and net proceeds of sale or
other disposition of repossessed goods that were the subject of such Tricon
Receivable), in each case
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without regard to whether such funds are immediately available or evidenced by
checks or otherwise.
"Tricon Credit Agreement" means the Credit Agreement dated as of
October 2, 1997 among Tricon, the Lenders party thereto, The Chase Manhattan
Bank, as Administrative Agent, Chase Manhattan Bank Delaware, as Issuing Bank
and the Syndication Agents and Arrangers party thereto, as the same may be
amended, amended and restated or otherwise modified from time to time.
"Tricon Fixed Charge Coverage Ratio" means the "Fixed Charge Coverage
Ratio" as defined in the Tricon Credit Agreement.
"Tricon Leverage Ratio" means the "Leverage Ratio" as defined in the
Tricon Credit Agreement.
"Tricon Receivable" means a Receivable the Obligor of which is Tricon.
"Turnover Days" means, at any time, the greater of (a) thirty (30) and
(b) the quotient of:
(x) (i) the sum of the Unpaid Balances of Tricon Receivables
as of the Cut-Off Date for each of the two immediately preceding
Calculation Periods divided by 2, multiplied by (ii) 60; divided by
(y) the aggregate amount payable pursuant to invoices giving
rise to Tricon Receivables that were generated during the immediately
preceding two Calculation Periods.
"Unapplied Cash" means, on any Business Day, available funds received
in the Master Collection Account and reflected in the Daily Report for that
Business Day that have not been applied as Collections on a particular
Receivable on or prior to the time as of which that Daily Report is prepared.
"Unmatured Early Amortization Event" means an event or condition that,
upon the giving of notice or the passage of time, would become an Early
Amortization Event.
"Z-value" means 1.96.
SECTION 1.2 Incorporation of Terms. The terms of the Pooling Agreement
are incorporated in this Supplement as if set forth in full herein. As
supplemented by this Supplement, the Pooling Agreement is in all respects
ratified and confirmed and both together shall be read, taken and construed as
one and the
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same agreement. If the terms of this Supplement and the terms of the Pooling
Agreement conflict, the terms of this Supplement shall control with respect to
the Series 1998-1 Certificates.
ARTICLE II DESIGNATION
SECTION 2.1 Designation. There is hereby created a Series to be known
as the "Series 1998-1 Certificates" or the "Floating Rate Variable Funding
Certificates, Series 1998-1". Subject to the conditions set forth in Article
III, Trustee shall authenticate and deliver the Series 1998-1 Certificates to
or upon the order of Transferor in an aggregate Stated Amount equal to
$105,000,000, it being understood that the Stated Amount may decrease in the
circumstances contemplated by Section 2.3 of the Certificate Purchase
Agreement.
ARTICLE III CONDITIONS TO ISSUANCE; USE OF PROCEEDS
SECTION 3.1 Conditions to Issuance. Trustee shall not authenticate the
Series 1998-1 Certificates unless (i) all conditions to the issuance of the
Series 1998-1 Certificates under Section 6.10 of the Pooling Agreement shall
have been satisfied, (ii) Trustee shall have received a letter from AmeriServe
updating the letter previously delivered pursuant to the first sentence of
Section 5.1(o) of the Purchase Agreement, and (iii) all conditions set forth in
Section 7.1 of the Certificate Purchase Agreement shall have been satisfied.
SECTION 3.2 Use of Proceeds. The proceeds from the issuance of the
Series 1998-1 Certificates shall be used for general corporate purposes of
Transferor.
ARTICLE IV PAYMENTS AND ALLOCATIONS
SECTION 4.1 Interest; Additional Amounts. (a) Subject to Section 4.1
of the Certificate Purchase Agreement, Transferor may from time to time
allocate the Aggregate Invested Amount to the ABR Tranche and up to the number
of separate Eurodollar Tranches specified in Section 4.1(b) of the Certificate
Purchase Agreement; provided, however, that the Transferor shall not allocate
any of the Aggregate Invested Amount to the ABR Tranche unless the Agent can
not determine One-Month LIBOR with respect to the Eurodollar Tranches. Interest
on each Tranche shall be payable on each Distribution Date and shall be
calculated on the actual outstanding principal balance of the Series 1998-1
Certificates.
(b) Interest on a Eurodollar Tranche shall accrue during any Interest
Period at a rate per annum equal to the sum of (i) the Reserve Adjusted
Eurodollar
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Rate, plus (ii) the Certificate Spread and shall be calculated on the basis of
actual days over a year of 360 days.
(c) Interest on the ABR Tranche shall accrue at a rate per annum equal
to the sum of (i) the Alternate Base Rate in effect from time to time, plus
(ii) the Certificate Spread and shall be calculated on the basis of actual days
over a year of 365 or 366 days, as the case may be.
(d) Interest with respect to the Series 1998-1 Certificates due but
not paid on any Distribution Date shall be due on the next Distribution Date
with additional interest on the amount at 2% per annum above the Alternate Base
Rate to the extent permitted by law. To the extent permitted by law, interest
also shall accrue at the rate of 2% per annum above the Alternate Base Rate on
any other amounts due but not paid to the Agent, the Series 1998-1
Certificateholders, any Affected Party or any other Indemnitee pursuant to this
Supplement or the Pooling Agreement.
(e) Additional Amounts shall also be payable with respect to the
Series 1998-1 Certificates as specified in the Certificate Purchase Agreement
and, except in the case of Section 7.1, to the extent (but only to the extent)
that funds become available for such Additional Amounts in accordance with
Sections 4.2 or 4.3.
SECTION 4.2 Daily Calculations and Series Allocations. On each
Business Day, Servicer shall calculate the Carrying Cost Cash Reserve Amount
and the Base Amount. On each Business Day which is not in an Early Amortization
Period, Servicer shall also determine whether the Net Invested Amount is
greater than, equal to or less than the Base Amount.
On each Business Day, Servicer shall allocate to Series 1998-1 all
Tricon Collections received in the Master Collection Account since the
preceding Business Day. The funds allocated to Series 1998-1 in accordance with
the preceding sentence, together with any funds released from the Equalization
Account in accordance with Section 4.5 on that Business Day, are called the
"Daily Series Collections".
SECTION 4.3 Allocations of Daily Series Collections (Other Than in an
Amortization Period). On each Business Day (other than a Business Day falling
in an Amortization Period), (a) Servicer shall allocate to Series 1998-1 the
lesser of (i) the Investor Allocation Percentage of the Daily Series
Collections and (ii) the aggregate amount of Daily Series Collections required
to fund the items described in priorities first through fourth below to the
following purposes, in the priority indicated (and to the extent of Daily
Series Collections available), (b) Servicer shall indicate such allocation in
the Daily Report delivered on such Business Day, and
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(c) in accordance with such Daily Report, Trustee shall remit or hold funds as
follows:
first, to the Carrying Cost Account until the amount
allocated to the Carrying Cost Account equals an amount equal to the
Current Carrying Costs as of such day;
second, if Transferor shall have notified the Agent in
accordance with Section 3.1 of the Certificate Purchase Agreement that
it desires to reduce the Aggregate Invested Amount to the Principal
Funding Account until the funds on deposit in that account equal the
amount of such reduction;
third, if the Net Invested Amount is greater than the Base
Amount, to the Equalization Account in an amount sufficient to reduce
the Net Invested Amount to an amount equal to the Base Amount; and
fourth, to move from the Master Collection Account, into a
separate administrative subaccount, the amount necessary to pay on the
next Distribution Date all amounts payable in respect of Additional
Amounts.
On such Business Day, Servicer shall allocate the remainder
of the Daily Series Collections to purchase additional Tricon Assets
from the Transferor to the extent available or, if a sufficient level
of Tricon Assets are not then available, as a distribution on the
Transferor Certificate.
If, on any day, the amount of Daily Series Collections that is then
allocated to the Carrying Cost Account is less than the amount of Daily Series
Collections that is then required to be allocated to the Carrying Cost Account,
Servicer shall reallocate such Daily Series Collections on such day first to
the Monthly Trustee Payment Amount and Transition Costs, if any, and then to
one or more of the obligations described in priorities second through fourth of
the preceding sentence, in the order of priority set forth therein.
In addition, if, on any day, funds on deposit in the Master Collection
Account and available for allocation under priority fourth are less than the
amount of the obligations described therein, then the available Collections
shall be allocated by Servicer to the holders of such obligations pro rata
according to the respective amounts of such obligations held by them.
SECTION 4.4 Allocations of Daily Series Collections During an
Amortization Period. On each Business Day falling in an Amortization Period,
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(a) Servicer shall allocate the Daily Series Collections to Series 1998-1 for
the following purposes, in the priority indicated (and to the extent of Daily
Series Collections available), (b) Servicer shall indicate such allocation in
the Daily Report delivered on such Business Day, and (c) in accordance with
such Daily Report, Trustee shall remit or hold funds as follows:
first, to the Carrying Cost Account to the extent that the
balance therein is less than the amount of Current Carrying Costs
(other than any Servicing Fee payable to any AmeriServe Person)
payable on the Distribution Date relating to the Calculation Period
during which such Business Day falls;
second, to the Principal Funding Account, an amount equal to
the excess of the Daily Series Collections over the amount allocated
on that Business Day pursuant to priority first, provided that the
aggregate amount so deposited shall in no event exceed the Aggregate
Invested Amount for Series 1998-1;
third, to move from the Master Collection Account, into a
separate administrative subaccount, the amount necessary to pay on the
next Distribution Date all amounts payable in respect of Additional
Amounts;
fourth, to the Carrying Cost Account to the extent that the
balance therein is less than the amount of Current Carrying Costs
(including any Servicing Fee payable to any AmeriServe Person); and
fifth, the balance to Transferor.
If, on any day, funds on deposit in the Master Collection Account and
available for allocation under priority third are less than the amount of the
obligations described therein, then the available Collections shall be
allocated by Servicer to the holders of such obligations pro rata according to
the respective amounts of such obligations held by them.
SECTION 4.5 Withdrawals from the Equalization Account. On any Business
Day during the Revolving Period on which no Early Amortization Event (or
Unmatured Early Amortization Event) exists, Servicer may instruct Trustee in
writing to withdraw (and upon receipt of such instruction Trustee shall
withdraw) funds from the Equalization Account with respect to Series 1998-1 and
apply such funds as Daily Series Collections, so long as the Net Invested
Amount would not exceed the Base Amount after giving effect to such transfer
and application. On the first day of the Amortization Period, Servicer shall
instruct Trustee to transfer
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(and Trustee shall transfer) the entire balance in the Equalization Account to
the Principal Funding Account.
SECTION 4.6 [Reserved].
SECTION 4.7 Write-Offs and Recoveries. The allocation of Write-Offs
and Dilutions referred to in Section 4.3(b) of the Pooling Agreement shall not
apply to Series 1998-1.
SECTION 4.8 [Reserved].
SECTION 4.9 Tax Opinion. If any "Tax Opinion" is required to be
delivered in connection with the Series 1998-1 Certificates, the term "Tax
Opinion" shall have the meaning specified below:
"Tax Opinion" means, with respect to any action, an Opinion
of Counsel to the effect that, for Federal income tax and applicable
state income and franchise tax purposes, (a) such action shall not
adversely affect the characterization of the Investor Certificates of
Series 1998-1 as debt or partnership interests, (b) following such
action the Trust would not be treated as an association (or publicly
traded partnership) taxable as a corporation, (c) such action would
not be treated as a taxable event to any Series 1998-1 Investor
Certificateholder or Certificate Owner.
ARTICLE V DISTRIBUTIONS AND REPORTS
SECTION 5.1 Distributions. On each Distribution Date and (with respect
to clause sixth below) each Principal Payment Date, Trustee shall, in
accordance with instructions set out in the applicable Daily Report and to the
extent funds are available for such payment in the Carrying Cost Account (and,
in the case of clause eighth, in the Master Collection Account), distribute
such funds in the following priority:
first, to itself, the Monthly Trustee Payment Amount;
second, to the Servicer, so long as the Servicer is not an
AmeriServe Person, the Servicing Fee for the preceding Distribution
Period and to any Successor Servicer, the amount of any Transition
Costs;
third, to the Series 1998-1 Certificateholders, accrued and
unpaid interest on each Tranche;
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fourth, to the Series 1998-1 Certificateholders, any
additional interest payable pursuant to Section 4.1;
fifth, to the Series 1998-1 Certificateholders, an amount
equal to any Commitment Fee then payable in accordance with Section
4.2 of the Certificate Purchase Agreement;
sixth, on each Principal Payment Date, all funds deposited in
the Principal Funding Account on or prior to the most recent Cut-Off
Date (but in no event in excess of the Aggregate Invested Amount)
shall be distributed to the Series 1998-1 Certificateholders in
reduction of the Aggregate Invested Amount;
seventh, if on the Expected Final Payment Date or any
Distribution Date falling in an Early Amortization Period, the funds
on deposit in the Carrying Cost Account (less any Servicing Fee
payable on that day to any Person other than an AmeriServe Person)
shall be equal to or greater than the Aggregate Invested Amount (after
giving effect to the distribution required by clause sixth), then an
amount equal to such remaining Aggregate Invested Amount shall be
withdrawn from the Carrying Cost Account and distributed to the Series
1998-1 Certificateholders in reduction of the Aggregate Invested
Amount;
eighth, to the Persons entitled thereto, any Additional
Amounts then payable to the extent that funds have been allocated for
those Additional Amounts pursuant to priority fourth of Section 4.3 or
priority third of Section 4.4;
ninth, to the Rating Agencies, any fees owing by Transferor
or Servicer to the Rating Agencies for rating or monitoring Series
1998-1;
tenth, to the Servicer (if the Servicer is an AmeriServe
Person), the Servicing Fee for the preceding Distribution Period; and
eleventh, the balance (if any) to the Transferor.
Notwithstanding any other provision of this Supplement, if any Person
other than a Holder shall be entitled to receive Additional Amounts, such
Person shall not be prejudiced in its ability to recover such Additional
Amounts in accordance with the terms of the Transaction Documents on account of
references in this Supplement to Additional Amounts being distributed to the
Holders (it being understood that Holders shall not retain Additional Amounts
beyond those to which such Holders are entitled).
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All amounts payable to any Series 1998-1 Certificateholder hereunder
or with respect to its Series 1998-1 Certificate shall be made to such Series
1998-1 Certificateholder by wire transfer of immediately available funds in
Dollars not later than 2:00 p.m., New York City time, on the date due. Any
funds received after that time shall be deemed to have been received on the
next Business Day.
SECTION 5.2 Payments in Respect of Transferor Certificate. On each day
on which funds are allocated for this purpose pursuant to Sections 4.3 and 4.4,
Trustee shall, in accordance with instructions set out in the applicable Daily
Report, distribute to Transferor all funds allocated for that purpose in
accordance with those Sections. In addition, after the Aggregate Invested
Amount has been repaid in full and all interest and Additional Amounts have
been paid, any additional funds on deposit in the Carrying Cost Account, the
Equalization Account or the Principal Funding Account shall similarly be paid
to Transferor in respect of the Transferor Certificate.
SECTION 5.3 Daily Reports and Monthly Reports. (a) Each Daily Report
and Monthly Report shall be substantially in the applicable form set out in
Exhibit B or C or in such other form as may be satisfactory to both Servicer
and the Agent and consistent with the terms of this Supplement and the Pooling
Agreement. Copies of each Monthly Report shall be provided free of charge on
each Report Date by the Servicer to the Holders of Series 1998-1 Certificates.
Each Daily Report and each Monthly Report shall report the required information
for all outstanding Series. In addition, such reports shall provide information
with respect to (i) accrued interest on each Tranche and (ii) the Commitment
Fee Reserve Amount.
(b) Notwithstanding any other provision of this Supplement:
(i) In the event that a calculation or determination to be
made with respect to periods prior to the Closing Date refers to a
Daily Report or Monthly Report, such calculation or determination
shall be made even though Daily Reports and Monthly Reports were not
required to be delivered pursuant to this Supplement prior to the
Closing Date. By way of example, the "ADR" referred to in the
definition of Dilution Reserve Ratio shall be calculated for purposes
of periods prior to the Closing Date even though the definition of
Dilution Ratio refers to a calculation in a Monthly Report.
(ii) Any calculation or determination which relates to a
Cut-Off Date and Tricon Receivables and which is to be made with
respect to periods or dates prior to the Cut-Off Date occurring in May
1998 shall be made instead with respect to Unmodified End Dates
relating to such
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periods or dates. "Unmodified End Date" means, to the extent relevant,
the end of "Periods" historically used by AmeriServe in connection
with its servicing operations relating to Tricon Receivables.
(iii) Servicer at all times shall use its best efforts to
estimate the items described in clause (b) of the definition of Net
Eligible Receivables; provided that the fact that Servicer is
permitted to make such estimates shall not limit the effect of any
indemnification or other provision in any Transaction Document.
(iv) Servicer shall not be required to report an Early
Amortization Event pursuant to Sections 6.1(o), 6.1(p), 6.1(q), 6.1(r)
or 6.1(s) until the Servicer becomes aware of the same; provided,
however, that Servicer agrees it shall take affirmative steps to
determine whether an Early Amortization Event has occurred with
respect to Section 6.1(p) not less than once every two weeks.
This Section 5.3 shall not limit the obligation of Servicer to make the
allocations and calculations required by this Supplement on a daily basis.
SECTION 5.4 Annual Tax Information. During January (and on or before
January 31) of each calendar year, Servicer, on behalf of Trustee, shall
furnish or cause to be furnished to each Person who at any time during the
preceding calendar year was a Holder the information for the preceding calendar
year, or the applicable portion thereof during which the Person was a Holder,
as is required to be provided by an issuer of indebtedness under the Internal
Revenue Code to the holders of the issuer's indebtedness and such other
customary information as is necessary to enable such Holders to prepare their
federal income tax returns. Notwithstanding anything to the contrary contained
in this Agreement, Trustee shall, to the extent required by applicable law,
from time to time furnish to the appropriate Persons, at least five Business
Days prior to the end of the period required by applicable law, the information
required to complete a Form 1099-INT.
SECTION 5.5 Periodic Perfection Certificate. (a) During December (and
on or before December 31) of each calendar year, Servicer, on behalf of Trustee,
shall furnish or cause to be furnished to Trustee and the Agent an Officer's
Certificate setting forth a list of all changes in (i) the name, identity or
corporate structure of Transferor or any Seller and (ii) the chief executive
office of Transferor or any Seller (or in the place of business of Transferor or
any Seller that has only one place of business) that have taken place since the
date of the Officer's Certificate most recently delivered pursuant to this
Section 5.5, or indicating that no such events have taken place, and stating in
each case what filings of UCC
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financing statements, or amendments thereto, relating to the Transaction
Documents have been made in connection with each such event (identifying the
date and filing index numbers for each). Any financing statement identified in
such an Officer's Certificate delivered to Trustee shall be deemed to have been
identified to Trustee in writing for purposes of subsection 11.1(c)(v) of the
Pooling Agreement. If any such new UCC financing statements are filed, Servicer
shall cause Trustee to be named as secured party (in the case of any filing
against Transferor) or assignee of the secured party (in the case of any filing
against a Seller).
(b) Notwithstanding the foregoing, if any "Default" or "Event of
Default" under (and as defined in) the AmeriServe Credit Agreement occurs,
Servicer shall deliver an Officer's Certificate covering the matters described
in clause (a) above to Trustee and Agent not later than 10 days after the
occurrence of such "Default" or "Event of Default" and for so long as any such
"Default" or "Event of Default" remains outstanding Servicer shall deliver such
an Officer's Certificate on the last Business Day falling in each of March,
June, September and December.
ARTICLE VI EARLY AMORTIZATION EVENTS
SECTION 6.1 Early Amortization Events. Each of the following shall
constitute an "Early Amortization Event":
(a) (i) failure of any interest, Commitment Fee or principal
payable to the Series 1998-1 Certificateholders on any date to be paid
to the Series 1998-1 Certificateholders on such date; or (ii) failure
on the part of Transferor or Servicer to make any deposit or any other
payment required by the terms of any Transaction Document on or before
one Business Day after the date such deposit or payment is required to
be made; or (iii) failure on the part of any Seller to duly observe or
perform Section 6.1(f), 6.1(h), 6.1(i), 6.1(j), 6.2, 6.3(a), 6.3(b),
6.3(c) or 6.3(e) of the Purchase Agreement or Transferor to duly
observe or perform Section 7.2(c), 7.2(d), 7.2(e), 7.2(f), 7.2(g),
7.2(h), 7.2(i), 7.2(j), 7.2(k), 7.2(m), 7.2(n), 7.2(q) or 7.2(r) of the
Pooling Agreement, which failure continues unremedied for a period of
five Business Days; or (iv) failure on the part of Transferor,
Servicer, any Seller or Guarantor duly to observe or perform any other
covenant or agreement set forth in any Transaction Document, which
failure continues unremedied for a period of 30 days; or (v) Guarantor
gives notice of termination of the Seller Guaranty (or otherwise
purports to disaffirm or contest the Seller Guaranty);
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(b) any representation or warranty made by a Seller in
Section 5.1(d), 5.1(k), 5.1(o) or 5.1(r) of the Purchase Agreement or
by Transferor in Section 2.3(a)(i), 2.3(a)(ii) or 7.1(i) of the
Pooling Agreement shall prove to have been incorrect in any material
respect when made, and continues to be incorrect in any material
respect for a period of five Business Days, or any other
representation or warranty made by Transferor, Servicer, any Seller or
Guarantor in any Transaction Document shall prove to have been
incorrect in any material respect when made, and continues to be
incorrect in any material respect for a period of 30 days; provided
that a representation and warranty with respect to a Receivable set
forth in Section 5.1(k), 5.1(l) or 5.3(b) of the Purchase Agreement
shall not constitute an Early Amortization Event unless and until the
applicable Seller has failed to make the cash payments (if any) owed
under Sections 3.1 and 3.5 of the Purchase Agreement in respect of
such mistake or breach (it being understood that certain of such
mistakes or breaches may result in a non-cash adjustment under the
Purchase Agreement);
(c) a Bankruptcy Event shall occur with respect to
Transferor, Servicer, Guarantor or any Seller, or Transferor shall
become unable, for any reason, to transfer Receivables or other
Transferred Assets to Trustee in accordance with the provisions of
this Supplement and the Pooling Agreement; provided that if, at the
time any event that would, with the passage of time, become a
Bankruptcy Event occurs as a result of a bankruptcy proceeding being
filed against Transferor or any Seller, then, on and after the day on
which the bankruptcy proceeding is filed until the earlier to occur of
the dismissal of the proceeding and the Early Amortization
Commencement Date, Transferor shall not purchase Receivables and
Related Assets from the affected Seller or, if Transferor is the
subject of the proceeding, transfer Receivables and Related
Transferred Assets to the Trustee;
(d) the Trust or Transferor shall become an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
(e) the Net Invested Amount exceeds the Base Amount for a
period of five or more consecutive Business Days;
(f) a Servicer Default occurs;
(g) AmeriServe shall cease to directly own 100% of the issued
and outstanding capital stock of Transferor;
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(h) the Internal Revenue Service or the PBGC shall have filed
one or more Tax or ERISA Liens against the assets of Transferor or any
Seller (including Receivables);
(i) the cessation of, or the failure to create, a valid
first-priority perfected ownership or security interest in favor of
Trustee in the Receivables or the rights of Transferor under the
Purchase Agreement;
(j) the Aggregate Invested Amount is not paid in full on the
Expected Final Payment Date;
(k) the Transferor Net Worth shall be less than the greater
of (i) 10% of the aggregate Unpaid Balance of the Receivables held by
the Transferor and the Trust and (ii) $25,000,000, and in either case
such condition shall continue for more than five consecutive Business
Days;
(l) any foreclosure or similar proceeding in respect of any
Adverse Claim on any Buyer Note or the Transferor's common stock shall
have been commenced; or title to any Buyer Note or Transferor's common
stock shall pass to the holders of such Adverse Claim, it being
understood that the grant of a security interest in the stock of
Transferor or any Buyer Note pursuant to the AmeriServe Credit
Agreement to a creditor of a Seller that is party to an Intercreditor
Agreement shall not be an Early Amortization Event;
(m) the Intercreditor Provisions shall be amended, waived,
modified or breached without the prior written consent of the Agent,
it being understood and agreed that Transferor shall notify the Rating
Agencies of any such written consent;
(n) NEHC, AmeriServe, or any Subsidiary (other than a
Receivables Subsidiary) (i) fails to make any payment (including any
mandatory prepayment or redemption) in respect of any Indebtedness or
Contingent Obligation having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of
more than $5,000,000 when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) or (ii) fails to
perform or observe any other condition or covenant, or any other event
shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation, and, in
the case of each of clause (i) or clause (ii), as the case may be,
such failure continues after the applicable grace or notice period, if
any, specified in the relevant document
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30
on the date of such failure if the effect of such failure, event or
condition is to cause such Indebtedness to be declared to be due and
payable prior to its stated maturity, or such Contingent Obligation to
become payable or cash collateral in respect thereof to be demanded
(capitalized terms (other than AmeriServe) used in this clause (n)
shall have the meanings set forth in the AmeriServe Credit Agreement,
except that for purposes of this clause (n), any reference in the
AmeriServe Credit Agreement to "the Company" shall be deemed to refer
to NEHC or AmeriServe, as the case may be);
(o) Tricon (i) fails to make any payment (including any
mandatory prepayment or redemption) in respect of any Indebtedness or
Contingent Obligation having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of
more than $10,000,000 when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) or (ii) fails
to perform or observe any other condition or covenant, or any other
event shall occur or condition exist, under any agreement or
instrument relating to any such Indebtedness or Contingent Obligation,
and, in the case of each of clause (i) or clause (ii), as the case may
be, such failure continues after the applicable grace or notice
period, if any, specified in the relevant document on the date of such
failure, in each case, regardless of whether the effect of such
failure, event or condition is to cause such Indebtedness to be
declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect
thereof to be demanded (capitalized terms (other than Tricon) used in
this clause (o) shall have the meanings set forth in the AmeriServe
Credit Agreement, except that for purposes of this clause (o), any
reference in the AmeriServe Credit Agreement to "the Company" shall be
deemed to refer instead to Tricon); provided, however, that any
consent, waiver, forbearance or amendment which would waive, cure or
make irrelevant any such failure, event or condition relating to any
such Indebtedness or Contingent Obligation shall have no effect for
purposes of this clause (o);
(p) Tricon shall fail to have a long-term unsecured public
debt rating from all of the Rating Agencies of at least "B+";
(q) the Tricon Leverage Ratio as of any date during any
period set forth below (inclusive of the specified first and last day
of such period) is in excess of the ratio set forth below opposite
such period:
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Period Ratio
------ -----
Until December 26, 1998 4.00 to 1.00
December 27, 1998-December 25, 1999 3.50 to 1.00
December 26, 1999-December 30, 2000 3.25 to 1.00
After December 30, 2000 3.00 to 1.00
(r) the Tricon Fixed Charge Coverage Ratio for any period of
four consecutive fiscal quarters ending during any period set forth
below (inclusive of the specified first and last day of such period)
is less than the ratio set forth below opposite such period:
Period Ratio
------ -----
Until December 25, 1999 1.25 to 1.00
December 26, 1999-December 30, 2000 1.35 to 1.00
After December 30, 2000 1.50 to 1.00
(s) Tricon (or any Person acting for or on behalf of Tricon)
provides any collateral for any of its obligations under the Tricon
Credit Agreement, or the Tricon Credit Agreement otherwise becomes in
any respect a secured facility; or
(t) the aggregate Unpaid Balance of Tricon Receivables aged
more than 120 days past their respective original invoice dates
exceeds fifty percent (50%) of the aggregate Unpaid Balance of all
Tricon Receivables.
SECTION 6.2 Early Amortization Period. Upon the occurrence and
continuance of any Early Amortization Event described in subsection 6.1(c),
(d), (e), (i), (j) or (k) an Early Amortization Period shall commence
immediately on the date of such occurrence without any notice or other action
on the part of any Person. Upon the occurrence and during the continuance of
any other Early Amortization Event, if so directed in writing by the Agent
(acting on behalf of Series 1998-1 Certificateholders), Trustee shall, by
notice given in writing to Transferor and Servicer as soon as possible after
Trustee's receipt of such written direction from the Agent (acting on behalf of
Series 1998-1 Certificateholders), declare that an Early Amortization Period
has commenced (and the Early Amortization Period shall commence immediately as
of the date Trustee sends such notice). On the date such notice is sent,
Trustee shall provide the Agent with
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a copy of such notice in accordance with Section 10.7 of the Certificate
Purchase Agreement.
ARTICLE VII OPTIONAL REDEMPTION; INDEMNITIES
SECTION 7.1 Optional Redemption of Investor Interests. On any
Distribution Date occurring during an Early Amortization Period with respect to
the Series 1998-1 Certificates on or after the date that the aggregate Unpaid
Balance of the Tricon Receivables is reduced to ten percent (10%) or less of
the aggregate Unpaid Balance of the Tricon Receivables as of the commencement
of such Early Amortization Period, Transferor shall have the option to redeem
the Series 1998-1 Series Interest. The purchase price shall be an amount equal
to the sum of (a) the Aggregate Invested Amount, plus (b) accrued and unpaid
interest on the Series 1998-1 Certificates (and accrued and unpaid interest
with respect to interest that was due but not paid on any prior Distribution
Date) through the day preceding such Distribution Date in accordance with
Section 4.1, plus (c) any Additional Amounts then due. Upon the tender of the
outstanding Series 1998-1 Certificates, Trustee shall distribute the amounts,
together with all funds on deposit in the Principal Funding Account that are
allocable to the Series 1998-1 Certificates, to the Series 1998-1
Certificateholders on the next Distribution Date in repayment of the principal
amount and accrued and unpaid interest owing to the Series 1998-1
Certificateholders. Following any redemption, the Series 1998-1
Certificateholders shall have no further rights with respect to the
Receivables, subject to Section 8.10. In the event that Transferor fails for
any reason to deposit in the Principal Funding Account the aggregate purchase
price for the Series 1998-1 Certificates, payments shall continue to be made to
the Series 1998-1 Certificateholders in accordance with the terms of the
Pooling Agreement and this Supplement.
SECTION 7.2 Indemnification by Transferor. Transferor hereby agrees to
indemnify the Trust, Trustee, the Agent, each Holder of a Series 1998-1
Certificate and each of the successors, permitted transferees and assigns of
any such Person and all officers, directors, shareholders, controlling Persons,
employees, affiliates and agents of any of the foregoing (each of the foregoing
Persons (other than the Transferor) individually being called a "Transferor
Indemnified Party"), forthwith on demand, from and against any and all damages,
losses, claims (whether on account of settlements or otherwise, and whether or
not the relevant Transferor Indemnified Party is a party to any action or
proceeding that gives rise to any Transferor Indemnified Losses (as defined
below)), judgments, liabilities and related reasonable costs and expenses
(including reasonable Attorney Costs) (all of the foregoing collectively being
called "Transferor Indemnified Losses") awarded against or incurred by any of
them that arise out of or relate to this Agreement, any
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33
other Transaction Document or any of the transactions contemplated herein or
therein or the use of proceeds herefrom or therefrom (including without
limitation any Transferor Indemnified Losses relating to any Adverse Claim,
without regard to whether such Adverse Claim was a Permitted Adverse Claim).
Notwithstanding the foregoing, in no event shall any Transferor
Indemnified Party be indemnified for any Transferor Indemnified Losses (i)
resulting from gross negligence or willful misconduct on the part of such
Transferor Indemnified Party (or the gross negligence or willful misconduct on
the part of any of its officers, directors, employees, affiliates or agents),
(ii) to the extent they include Transferor Indemnified Losses in respect of
Receivables and reimbursement therefor that would constitute credit recourse to
Transferor for the amount of any Receivable or Related Transferred Asset not
paid by the related Obligor, or (iii) to the extent they are or result from
taxes (including interest and penalties thereon) asserted with respect to (A)
distributions on the Series 1998-1 Certificates, (B) franchise or withholding
taxes imposed on any Transferor Indemnified Party other than the Trust or
Trustee in its capacity as Trustee, or (C) federal or other income taxes on or
measured by the net income of such Transferor Indemnified Party and costs and
expenses in defending against the same.
If for any reason the indemnification provided in this section is
unavailable to a Transferor Indemnified Party or is insufficient to hold a
Transferor Indemnified Party harmless, then Transferor shall contribute to the
amount paid by the Transferor Indemnified Party as a result of any loss, claim,
damage or liability in such proportion as is appropriate to reflect not only
the relative benefits received by the Transferor Indemnified Party on the one
hand and Transferor on the other hand, but also the relative fault (if any) of
the Transferor Indemnified Party and Transferor and any other relevant
equitable considerations.
Notwithstanding any provisions contained in any Transaction Document
to the contrary, Transferor shall not, and shall not be obligated to, pay any
amount pursuant to this Section unless funds are allocated for such payment
pursuant to Article IV of this Supplement. Any amount which Transferor does not
pay pursuant to the operation of the preceding sentence shall not constitute a
claim (as defined in Section 101 of the Bankruptcy Code) against or corporate
obligation of Transferor for any such insufficiency.
SECTION 7.3 Indemnification by Servicer. Servicer agrees that each of
the Agent, each Holder of a Series 1998-1 Certificate and each other Transferor
Indemnified Party shall be an "Indemnified Party" for purposes of the Pooling
Agreement.
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34
ARTICLE VIII MISCELLANEOUS
SECTION 8.1 Amendment, Waiver, Etc. (a) Neither this Supplement nor
any other Transaction Document shall be amended, modified or waived except in
accordance with Section 10.1 of the Certificate Purchase Agreement and, to the
extent applicable, Section 13.1 of the Pooling Agreement, and the terms of
those sections shall apply to any such amendment, modification or waiver. In
addition, no waiver of an Early Amortization Event described in Section 6.1(h)
shall be effective unless the Modification Condition shall have been satisfied.
(b) No reference to the AmeriServe Credit Agreement in the Transaction
Documents shall include any amendments, amendments and restatements or other
modifications of the AmeriServe Credit Agreement unless the Pooling Agreement
and this Supplement, if applicable, have been amended to reflect the same, and
all references to the AmeriServe Credit Agreement in the Transaction Documents
shall survive termination of the AmeriServe Credit Agreement. Without limiting
the foregoing, any amendment of the Pooling Agreement contemplated by the
preceding sentence shall be subject to Section 10.1 of the Certificate Purchase
Agreement.
SECTION 8.2 Trustee. Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplement
or for or in respect of the recitals contained herein, all of which recitals
are made solely by Transferor and Servicer.
SECTION 8.3 Instructions in Writing. All instructions given by
Servicer to Trustee pursuant to this Supplement shall be in writing, and may be
included in a Daily Report or Monthly Report.
SECTION 8.4 Rule 144A. So long as any of the Series 1998-1
Certificates are "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, Transferor shall, unless it becomes subject to and
complies with the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, or rule 12g3-2(b) thereunder,
provide to any Holder of such restricted securities, or to any prospective
purchaser of such restricted securities designated by a Holder, upon the
request of such Holder or prospective purchaser, any information required to be
provided by Rule 144A(d)(4) under the Securities Act.
SECTION 8.5 Supplemental Ratings Requirement. So long as any of the
Series 1998-1 Certificates are outstanding, if any provision of the Purchase
Agreement, the Pooling Agreement, this Supplement or the Certificate Purchase
Agreement requires a Person or investment to have a certain rating from S&P,
and
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35
such Person or investment is also rated by DCR, then, unless the context
otherwise requires, such provision shall be read to also require a rating from
DCR that is equivalent to the required rating from S&P.
SECTION 8.6 Waiver. Each of Trustee, the Certificateholders and the
Certificate Owners agrees and acknowledges that Mayer, Brown & Platt represents
Bank of America and Affiliates of Bank of America in connection with the
Transaction Documents and waives any conflict of interest relating thereto.
Mayer, Brown & Platt is entitled to rely on this Section 8.6.
SECTION 8.7 Negotiations. This Supplement and the other Transaction
Documents are the result of negotiations among and have been reviewed by
counsel to the Transferor, the AmeriServe Persons and the other parties, and
are the products of all parties. Accordingly, they shall not be construed
against the Agent or the Series 1998-1 Certificateholders merely because of the
Agent's or the Series 1998-1 Certificateholders' involvement in their
preparation.
SECTION 8.8 Transfers of Series 1998-1 Certificates. Section 6.3 of
the Pooling Agreement shall be subject to Section 10.3 of the Certificate
Purchase Agreement.
SECTION 8.9 Incorporation by Reference. Without limiting the effect of
other provisions of the Pooling Agreement that otherwise apply to Series
1998-1, and without limiting the fact that this Supplement is a Transaction
Document, Sections 13.5, 13.6, 13.7, 13.9, 13.10, 13.11, 13.17 and 13.18 of the
Pooling Agreement are hereby incorporated into this Supplement by this
reference, with the references in such provisions to the Pooling Agreement or
any other Transaction Documents applying instead with equal force to this
Supplement.
SECTION 8.10 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Series 1998-1
Certificates delivered pursuant hereto shall survive the making and the
repayment of increases in the Aggregate Invested Amount and the execution and
delivery of this Supplement and the Series 1998-1 Certificates and shall
continue in full force and effect, and this Supplement shall not terminate,
until the Aggregate Invested Amount shall have been reduced to zero, all other
obligations owed to the Agent or the Series 1998-1 Certificateholders or
otherwise in respect of the Series 1998-1 Certificates have been paid and
performed in full (including all obligations under this Supplement and under
the Certificate Purchase Agreement) and all commitments of the Series 1998-1
Certificateholders under the Certificate Purchase Agreement have been
terminated. In addition, this Section 8.10 and Sections 7.2, 7.3, 8.6, 8.7,
8.8, 8.9 and 8.11 shall survive termination of this Supplement.
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SECTION 8.11 Agent. References in this Supplement to the Agent or to
the Agent acting on behalf of Series 1998-1 Certificateholders shall not be
deemed to amend or otherwise modify the Certificate Purchase Agreement.
SECTION 8.12 Notices to Rating Agencies. All notices, reports,
instructions and other communications with respect to the Rating Agencies
hereunder or under the Pooling Agreement shall, unless otherwise stated herein
or therein, be in writing (including facsimile communication) and shall be
personally delivered or sent by certified mail, postage prepaid, by facsimile
or by overnight courier, to the intended Rating Agency to its address set forth
below (or, as to any Rating Agency, to such other address or facsimile number
as shall be designated by such Rating Agency in a written notice to the parties
to this Supplement given in accordance with the Pooling Agreement):
If to DCR:
DUFF & PHELPS CREDIT RATING CO.
55 East Monroe Street
Suite 3500
Chicago, IL 60603
Attention: Jeffrey J. Orr
Telephone: 312-368-3335
Facsimile: 312-368-2069
If to S&P:
STANDARD & POOR'S STRUCTURED FINANCE
26 Broadway
15th Floor
New York, NY 10004
Attention: Peter Danna
(or in the case of Monthly Reports,
Attention: Asset-Backed Surveillance)
Telephone: 212-208-8288
Facsimile: 212-208-0027
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37
IN WITNESS WHEREOF, Transferor, Servicer and Trustee have caused this
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
AMERISERVE FUNDING CORPORATION,
as Transferor
By:
Name:
Title:
AMERISERVE FOOD DISTRIBUTION, INC.,
as initial Servicer
By:
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:
Name: Gary L. Nelson
Title: Assistant Vice President
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EXHIBIT A
to the Series 1998-1 Supplement
FORM OF SERIES 1998-1 CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN CONTRAVENTION OF THAT
ACT. THIS CERTIFICATE SHALL BE NOT ACCEPTED FOR REGISTRATION OF TRANSFER EXCEPT
UPON PRESENTATION OF EVIDENCE SATISFACTORY TO THE REGISTRAR AND TRANSFER AGENT
THAT THE RESTRICTIONS ON TRANSFER SET FORTH IN THE POOLING AGREEMENT HAVE BEEN
COMPLIED WITH.
EACH SERIES 1998-1 CERTIFICATEHOLDER REPRESENTS AND WARRANTS FOR THE BENEFIT OF
AMERISERVE FUNDING CORPORATION THAT SUCH SERIES 1998-1 CERTIFICATEHOLDER IS NOT
AND SHALL NOT BECOME A PARTNERSHIP, SUBCHAPTER S CORPORATION OR GRANTOR TRUST
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. [IF THIS REPRESENTATION CANNOT BE
MADE, TRANSFEROR, SERVICER OR THE TRUSTEE MAY REQUIRE THE LEGEND TO CONTAIN
ADDITIONAL REPRESENTATIONS.]
AMERISERVE RECEIVABLES MASTER TRUST
FLOATING RATE VARIABLE FUNDING CERTIFICATE,
SERIES 1998-1
Maximum Principal Amount:
First Distribution Date: August 15, 1998 $[ ]
THIS CERTIFIES that _________________ is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in the AmeriServe
Receivables Master Trust (the "Trust") that was created pursuant to (a) the
Amended and Restated Pooling and Servicing Agreement, dated as of July 28 1998
(as the same may be amended, amended and restated, supplemented or otherwise
modified from time to time, the "Pooling Agreement"), among AMERISERVE FUNDING
CORPORATION, a Delaware corporation ("Transferor"), AMERISERVE FOOD
DISTRIBUTION, INC., a Delaware corporation ("Servicer"), and
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39
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association,
as trustee (together with its successors and assigns in such capacity,
"Trustee") and (b) the Series 1998-1 Supplement dated as of July 28, 1998
relating to the Series 1998-1 Certificates (as the same may be amended, amended
and restated or otherwise modified from time to time, the "Supplement"). This
Certificate is one of the duly authorized Series 1998-1 Certificates designated
and issued under the Pooling Agreement and the Supplement. Except as otherwise
defined herein or in the Supplement, terms defined in Appendix A to the Pooling
Agreement have the meanings which such Appendix A assigns to them. This
Certificate is subject to the terms, provisions and conditions of, and is
entitled to the benefits afforded by, the Pooling Agreement and the Supplement,
to which terms, provisions and conditions the Holder of this Certificate by
virtue of the acceptance hereof assents and by which the Holder is bound.
Unless the certificate of authentication hereon shall have been
executed by or on behalf of Trustee by the manual signature of a duly
authorized signatory, this Certificate shall not entitle the Holder hereof to
any benefit under the Transaction Documents or be valid for any purpose.
This Certificate does not represent a recourse obligation of, or an
interest in, Transferor, any Seller, Servicer, Trustee or any Affiliate of any
of them. This Certificate is limited in right of payment to the Transferred
Assets.
By its acceptance of this Certificate, each Holder hereof (a)
acknowledges that it is the intent of Transferor, and agrees that it is the
intent of the Holder that, for Federal, state and local income and franchise
tax purposes and other taxes measured by or imposed on income, the Series
1998-1 Certificates (including this Certificate) shall be treated as evidence
of indebtedness secured by the Transferred Assets and the Trust not be
characterized as an association taxable as a corporation, (b) agrees to treat
this Certificate for Federal, state and local income and franchise tax purposes
and other taxes measured by or imposed on income as indebtedness and (c) agrees
that the provisions of the Transaction Documents shall be construed to further
these intentions of the parties.
This Certificate shall be construed in accordance with the laws of the
State of Delaware without regard to its conflict of laws principles, and all
obligations, rights and remedies under or arising in connection with this
Certificate shall be determined in accordance with the laws of the State of
Delaware.
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40
IN WITNESS WHEREOF, Transferor has caused this Certificate to be
executed by its officer thereunto duly authorized.
AMERISERVE FUNDING CORPORATION
By:
Title:
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41
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1998-1 Certificates referred to in the
Pooling Agreement, as supplemented by the Supplement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:
Title:
Dated:
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INCREASES AND DECREASES
Amount of Increase Amount of Decrease Outstanding Stated
in Invested Amount in Invested Amount Invested Amount Amount
- -------------------- --------------------- --------------------- ------
ABR Eurodollar ABR Eurodollar ABR Eurodollar
Tranche Tranche Tranche Tranche Tranche Tranche
- ------- ---------- ------- ---------- ------- ----------
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43
EXHIBIT B
to the Series 1998-1 Supplement
FORM OF DAILY REPORT
44
EXHIBIT C
to the Series 1998-1 Supplement
FORM OF MONTHLY REPORT