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EXHIBIT 10.33
AMENDMENT NO. 2
This AMENDMENT NO. 2 amends each of
(i) the Pooling and Servicing Agreement dated as of February 10,
1993 as amended by Amendment No. 1, dated January 31, 1994
(the "Pooling and Servicing Agreement"), including Annex X
thereto, and as supplemented by the Variable Funding
Supplement dated as of February 12, 1993, the Series 1993-1
Supplement dated as of July 23, 1993 (the "Series 1993-1
Supplement"), the Series 1993-2 Supplement dated as of July
23, 1993 (the "Series 1993-2 Supplement"), the Series 1994-1
Supplement dated as of March 24, 1994 (the "Series 1994-1
Supplement"), the Series 1994-2 Supplement dated as of March
24, 1994 (the "Series 1994-2 Supplement") and the Series
1994-3 Supplement dated as of March 24, 1994 (the "1994-3
Supplement") each among Xxxxxx Funding Inc. ("Funding"),
Xxxxxx Industries Inc. ("Ingram") and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee"),
(ii) the Asset Purchase and Sale Agreement dated as of February 10,
1993 (the "Purchase Agreement") as amended by Amendment No. 1,
dated January 31, 1994 between Funding and Ingram,
(iii) the Asset Purchase and Sale Agreement dated as of February 10,
1993 (the "Micro Purchase Agreement") as amended by Amendment
No. 1, dated January 31, 1994 between Xxxxxx Micro Inc.
("Micro") and Ingram,
(iv) the Asset Purchase and Sale Agreement dated as of February 10,
1993 (the "Commtron Purchase Agreement") as amended by
Amendment No. 1, dated January 31, 1994 between Xxxxxx
Entertainment Inc., ("Entertainment") (as successor to
Commtron) and Ingram,
(v) the Subservicing Agreement dated as of February 12, 1993 (the
"Micro Subservicing Agreement") between Ingram and Micro,
(vi) the Subservicing Agreement dated as of February 12, 1993 (the
"Commtron Subservicing Agreement") between Ingram and Commtron,
(vii) the Letter of Credit Reimbursement Agreement dated as of
February 10, 1993, as amended on October 15, 1994, (the "LOC
Agreement") among Distribution Funding Corporation (the "CP
Issuer"), Funding, Chemical Bank ("Chemical"), and the LOC
Issuers named therein, and
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(viii) the Liquidity Agreement dated as of February 10, 1993, as
amended on October 15, 1994, (the "Liquidity Agreement") as
amended by Amendment No. 1, dated January 31, 1994 among the
CP Issuer, Funding, Ingram, Chemical, NationsBank of North
Carolina, N.A. ("NationsBank"), The Bank of Nova Scotia
("BNS" and, together with Chemical and NationsBank, the
"Banks"), Chemical, as agent for the Banks, with BNS,
NationsBank and the Industrial Bank of Japan, Limited, Atlanta
Agency, as Lead Managers,
and is entered into as of September 13, 1996 (the "Amendment Effective Date")
by and among each of the above-named parties to the several agreements listed
above.
WHEREAS, the parties to each of the Agreements desire to enter
into certain amendments thereto and to consent to all such amendments to all
such Agreements,
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
I. Defined Terms. Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them in, or for
purposes of, the Agreement(s) in which such term is used.
II. Amendments to Pooling and Servicing Agreement. The
Pooling and Servicing Agreement shall be amended as follows:
A. Assumption and Release of Duties
From and after the date of consummation and
settlement of the stock transfers contemplated in the Exchange Agreement
described in the registration statement (SEC Registration No. 333-08453)filed
with the Securities and Exchange Commission (the "SEC") with respect to the
common stock of Xxxxxx Micro Inc., a Delaware corporation ("New Micro") (such
date the "Reorganization Date"), Micro will assume all of the duties and
obligations of Ingram under the Pooling and Servicing Agreement and as of such
date Ingram shall be released from all of its duties and obligations under or
in connection with such Agreement except as expressly provided herein.
B. Conveyance of Receivables
It is recognized and agreed that in light of
the various changes being accomplished under this Amendment, from and after the
Amendment Effective Date, Entertainment, as successor to Commtron, and Micro
will be removed as Designated Subsidiaries and it is further agreed that
accounts receivable created by the Ingram Book Company division of Ingram shall
no longer be
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Receivables for purposes of Section 2.01 of the Pooling and Servicing
Agreement. Micro shall assume all of the duties and obligations of Ingram
under the Purchase Agreement; provided, however, that Micro shall have no
obligation to sell accounts receivable generated by its "CMD" (as defined in
Exhibit B hereto) operations. Therefore, for the avoidance of doubt, Xxxxxx,
Micro and Entertainment hereby agree as follows:
Each of Xxxxxx, Micro and Entertainment represents and warrants that
all of the conditions necessary for the removal of Micro and
Entertainment as Designated Subsidiaries in accordance with Section
2.2 of the Purchase Agreement have been fulfilled; and
As of the Amendment Effective Date, any and all Receivables purchased
by Funding and conveyed to the Trust pursuant to Section 2.01 of the
Pooling and Servicing Agreement by Funding shall be limited to
Receivables created by and purchased from Micro (exclusive of
Receivables created by CMD).
C. Continuing Obligations of Ingram
It is agreed that Ingram shall not be
released from any of its duties and obligations with respect to any Receivables
transferred under the Pooling and Servicing Agreement prior to the Amendment
Effective Date, including the requirements with respect to the preparation and
submission of reports on such Receivables. Further, the obligations of Ingram
under Sections 8.04, 8.06 and 8.08 of the Pooling and Servicing Agreement shall
remain in effect with respect to liabilities that may arise with respect to the
activities Ingram has conducted as Servicer and with respect to the application
of such provisions to Receivables transferred prior to the Amendment Effective
Date.
Ingram shall continue to maintain the books
and accounts required under Section 3.03(t), and shall continue to be
responsible for the performance of its obligations under Sections 3.03 (1),(q)
and (o), of the Pooling and Servicing Agreement, but only until the
Reorganization Date. On and after the Reorganization Date, such duties shall be
the responsibility solely of Micro.
It is further understood and agreed that on
and after the Reorganization Date, Ingram shall have the right to repurchase
all Receivables with any unpaid balance held under the Pooling and Servicing
Agreement which were created by either Ingram or Entertainment at a price equal
to the Purchase Price thereof, increased by an amount appropriate to recover
the amount determined under the Seller's Discount provisions with respect to
such Receivables, less any amounts actually collected by the Trust with respect
to such Receivables. Ingram agrees to use its best efforts to repurchase such
Receivables on the Reorganization Date or as
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soon thereafter as practicable; provided, however, that no such repurchase
shall be made if as of the result of any such repurchase of a Receivable an
Event of Termination with respect to any Series would occur.
D. Amendments with Respect to Allocations and
Payments.
Section 4.03(b)(i)(B) is revised to be as
follows:
(B) Allocate and pay to the holder of the
Transferor Certificate an amount equal to the product of (1) the Invested
Percentage for such Series and (2) the Principal Collections for such Business
Day; provided that no such allocation or payment shall be made if on such
Business Day there shall be in existence a Suspension Event or an Event of
Termination.
The last paragraph of Section 9.01 is revised
to be as follows:
then, (a) in the case of any event described in subparagraph (i) (other than
clause (B) thereof), (ii) and (vi) after any applicable grace period set forth
in such subparagraphs, either the Trustee or the Holders of Investor
Certificates of the related Series evidencing Undivided Interests aggregating
more than 65% of the related Invested Amount of such Series by notice then
given in writing to the Transferor and the Servicer (and to the Trustee if
given by the Certificateholders) may declare that an Event of Termination has
occurred (A) with respect to all Series of Certificates (in the case of notice
given by the Trustee) or (B) such Series (in the case of notice given by
Investor Certificateholders) as of the date of such notice, or
(b) in the case of any event described in clause (B) of subparagraph
(i) or in subparagraphs (iii), (iv), (v), (vii), or (ix) an Event of
Termination with respect to all Series shall occur without any notice or other
action on the part of the Trustee or any Certificateholder immediately upon the
occurrence of such event, or
(c) in the case notice is provided to the Trustee that any event
described in subparagraph (viii) has occurred, the Trustee by notice then given
in writing to the Transferor and the Servicer will declare that an Event of
Termination has occurred with respect to all Series of Certificates as of the
date of such notice; provided, however, that in the event that within ten days
of such notice by the Trustee, the Holders of Investor Certificates of a Series
evidencing Undivided Interests aggregating at least 65% of the related Invested
Amount of such Series shall provide written notice to the Trustee, the
Transferor and the Servicer that they
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waive such Event of Termination, then no Event of Termination shall result with
respect to such Series.
E. Amendments with Respect to Allocations and
Distributions After Amortization Period Commencement Date.
It is agreed that the modifications addressed
with respect to the allocation and payment provisions of Section 4.04 with
respect to each of the Supplements other than the Variable Funding Supplement
shall become effective on the Amendment Effective Date; provided, however, that
the effectiveness of such modifications to Section 4.04 shall be suspended and
the provisions of Section 4.04 as in effect prior to the Amendment Effective
Date shall be reinstated beginning on the later of June 30, 1997 and such date
as Micro's independent accountants shall have confirmed in writing that the
accounting treatment of the sale of the Receivables under generally accepted
accounting principles ("GAAP") shall not be changed by such suspension and
reinstatement (any such adverse change, an "Adverse Balance Sheet Event").
Micro agrees to use its best efforts to obtain from its independent accountants
on or before the 10th Business Day immediately preceding June 30, 1997 either
(i) such confirmation or (ii) a written statement that such confirmation cannot
be made, identifying the pronouncements or other applicable accounting
standards that formed the basis of such conclusion and shall promptly furnish a
copy of any such document it receives to the Trustee and to each
Certificateholder.
Such suspension shall continue in effect
until and unless such provisions are further amended; provided however, if, on
or prior to July 1, 1998, (x) there shall be in effect a published
interpretation or similar determination by the SEC that has the effect of an
Adverse Balance Sheet Event (which would for this purpose include any written
communication with respect to FASB 125 from the SEC to Micro with respect to a
potential SEC enforcement action should Micro not restate its balance sheets)
and (y) Micro shall receive written advice from its independent accountants
that, based upon its review of the SEC publication or determination described
in (x) above, if the suspension of the modifications to Section 4.04 provided
in this Amendment No. 2 were revoked and such modifications were in effect,
there would be no on-going Adverse Balance Sheet Event, then the suspension of
such modification shall be revoked upon notice by Micro to the Trustee and the
Certificateholders of such circumstances, such notice to be accompanied by a
copy of such written advice from Micro's independent accountants identifying
the pronouncements, including such SEC publication or determination, or other
applicable accounting statements that formed the basis of such conclusion.
Notwithstanding the above sentence, if the publication or determination
referred to in (x) above is based upon either (a) modifications to FAS 125 that
occur subsequent to June 30, 1997 or (b) other accounting pronouncements that
are adopted subsequent to
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June 30, 1997, then no such revocation of the suspension of the modification
shall occur.
Prior to this amendment, subparagraphs (h),
(k), (l), (m) and (n) of such Section have contained an exception as to
allocation and payment after the Amortization Period Commencement Date that
operates to characterize certain amounts as Principal and direct the payment of
such amounts to the Class A Certificates until such Certificates have received
full payment of principal. The substance of this portion of Amendment No. 2 is
to revise such provisions so that these amounts will not be paid as Principal
on the Class A Certificates, but will be retained in a new account, the "Class
B Certificate Collection Account", which will be maintained until the
respective Class A Certificates have received full payment of principal. On
each Settlement Date until such time, amounts on deposit in the Class B
Certificate Collection Account will be applied to (1) the Class A Default
Deficiency Amount and (2) the reimbursement of Class A Charge-Offs under
subparagraphs (i) and (j), respectively, of Section 4.04, to the extent that
such Deficiencies or Charge-Offs exist. After the Class A Certificates have
been fully paid, all amounts on deposit in the Class B Certificate Collection
Account shall be released and applied to the other purposes described in
Section 4.04.
The revisions to Section 4.04 for each of
such Supplements are contained in Exhibit A attached hereto.
F. Annex X
Subparagraph (iv) of the definition of
"Eligible Receivable" shall be amended to be as follows:
(iv) which does not constitute an obligation of
the United States, or any state or any city or other
political subdivision thereof, or any agency,
instrumentality or subdivision of any of the
foregoing;
A new definition shall be inserted as
follows:
"Suspension Event" shall mean that at the close of business on the date of
determination either of the following conditions shall exist:
a. the Adjusted Eligible Principal Receivables
shall be less than the Minimum Adjusted
Eligible Principal Receivables; or
b. The Transferor Eligible Amount shall be less
than the Transferor Minimum Amount.
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G. Miscellaneous
On and after the Amendment Effective Date,
the Servicing Fee shall be payable to Micro. Xxxxxx and Micro may allocate the
Servicing Fee for periods prior to the Reorganization Date as they shall agree.
III. Amendments to the Purchase Agreement. The Purchase
Agreement shall be amended as follows:
A. Assumption and Release of Duties
From and after the Amendment Effective Date
Micro will assume all of the duties and obligations of Ingram under the
Purchase Agreement with respect to Receivables delivered from and after the
Amendment Effective Date. Ingram shall continue to perform its duties and
obligations with respect to Receivables delivered prior to the Amendment
Effective Date until the Ingram Release Date which shall be the later to occur
of (i) the date on which the Trustee provides notification to Ingram and
Entertainment that it no longer holds any interest in Receivables created by
Entertainment or Ingram (the "Entertainment Notification Date") and (ii) the
Reorganization Date. After the Ingram Release Date, Ingram shall be released
from all of its duties and obligations under or in connection with the Purchase
Agreement except as expressly provided herein.
B. Conveyance of Receivables
It is agreed that from and after the
Amendment Effective Date, Micro will become the Seller under the Purchase
Agreement and that Micro will not own or have any right to convey Receivables
created by either Ingram or Entertainment. Therefore, from and after the
Amendment Effective Date, the Purchase Agreement will relate to Receivables
created by Micro only. As earlier indicated, Micro shall not have an
obligation to sell CMD Receivables under the Purchase Agreement.
C. Continuing Obligations of Ingram
It is agreed that Ingram shall not be
released from any of its duties and obligations with respect to any Receivables
sold pursuant to the Purchase Agreement prior to the Amendment Effective Date.
Further, the obligation of Ingram under Section 9.13 of the Purchase Agreement
shall remain in effect after the Ingram Release Date. All other duties and
obligations of Ingram under the Purchase Agreement shall terminate on the
Ingram Release Date.
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D. Security Interests
Micro shall take all actions necessary to
create in favor of the Buyer the security interest contemplated by Section
2.1(f) of the Purchase Agreement in all Receivables transferred on and after
the Amendment Effective Date. The Buyer and the Trustee shall cooperate with
Ingram to release any security interest held by them in receivables created by
Ingram to the extent such receivables were created after the Amendment
Effective Date.
E. Term and Termination
Section 8.1 of the Purchase Agreement is
revised so that the existing clause (v) shall become clause (vi) and a new
clause (v) shall be inserted to be as follows:
(v) an officer of the Seller receives notice or
becomes aware that notice of a lien has been filed by
the Pension Benefit Guaranty Corporation against the
Seller, the Transferor or the Trust under Section 412
of the Code or Section 302(f) of ERISA for a failure
to make a required installment or other payment to a
plan to which Section 412(n) of the Code or Section
302(f) of ERISA applies;
F. Miscellaneous
To the extent that any explicit provision of
the Purchase Agreement shall be inconsistent with the intent of the shifting of
duties and obligations addressed in this Section III, such provision shall be
interpreted to apply in a manner consistent with the intention of the shift of
such duties and obligations from Ingram to Micro.
IV. Amendments to the Micro Purchase Agreement. The
Micro Purchase Agreement shall be amended as follows:
From and after the Amendment Effective Date, Micro shall have
no obligation to sell and Ingram shall have no obligation to buy any
receivables under the Micro Purchase Agreement. During the period commencing
on the Amendment Effective Date and ending on the date the Trustee provides
notification to Ingram and Micro that it no longer holds any interest in
Receivables created by Micro prior to the Amendment Effective Date (the "Micro
Notification Date"), both Micro and Ingram shall continue to perform all of
their duties and obligations with respect to Receivables sold prior to the
Amendment Effective Date. After the Micro Notification Date, neither Micro nor
Ingram shall have any continuing duties under the Micro Purchase Agreement and
such agreement shall terminate for all purposes.
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V. Amendments to the Commtron Purchase Agreement. The
Commtron Purchase Agreement shall be amended as follows:
From and after the Amendment Effective Date, Entertainment
shall have no obligation to sell and neither Ingram nor Micro shall have any
obligation to buy any receivables under the Commtron Purchase Agreement.
During the period commencing on the Amendment Effective Date and ending on the
Entertainment Notification Date, both Entertainment and Ingram shall continue
to perform all of their duties and obligations with respect to Receivables sold
prior to the Amendment Effective Date. After the Entertainment Notification
Date, neither Entertainment nor Ingram shall have any continuing duties under
the Entertainment Purchase Agreement and such agreement shall terminate for all
purposes.
VI. Amendments to the Micro Subservicing Agreement. The
Micro Subservicing Agreement shall be amended as follows:
Micro shall continue to perform all of its duties and
obligations under the Micro Subservicing Agreement until the Micro Notification
Date at which time the Micro Subservicing Agreement shall terminate and Micro
shall have no continuing duties or obligations thereunder.
VII. Amendments to the Commtron Subservicing Agreement.
The Commtron Subservicing Agreement shall be amended as follows:
Entertainment shall continue to perform all of its duties and
obligations under the Commtron Subservicing Agreement until the Entertainment
Notification Date at which time the Commtron Subservicing Agreement shall
terminate and Entertainment shall have no continuing duties or obligations
thereunder.
VIII. Amendments to the LOC Agreement. The LOC Agreement
shall be amended as follows:
A. Assumption and Release of Duties
From and after the Reorganization Date, Micro
shall become the Servicer under the Pooling and Servicing Agreement and shall
assume all of the duties and obligations of Ingram in its capacity as Servicer
under the LOC Agreement, except that Ingram shall have the continuing
responsibilities provided for under Section 5.03(b) of the LOC Agreement.
Micro hereby makes the representations and
warranties contained in: (i) Section 3.03, as of the Effective Date, and (ii)
Section 3.04 as of the Reorganization Date, in each case, substituting Micro
for Ingram in each of such provisions. Micro assumes all of the duties and
obligations of Ingram under the LOC Agreement in addition to those in its
capacity as Servicer as
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of the Reorganization Date and as of such date Ingram shall be released from
all of such duties and obligations.
B. Extension of Term
By execution of this Amendment No. 2, each of
the LOC Issuers agrees that the LOC Commitment and its respective Percentage of
the LOC Commitment is hereby extended until December 31, 1999.
IX. Amendments to the Liquidity Agreement. The Liquidity
Agreement shall be amended as follows:
A. Assumption and Release of Duties
From and after the Reorganization Date, Micro
shall become the Servicer under the Pooling and Servicing Agreement and shall
assume all of the duties of Ingram in its capacity as Servicer in connection
with the Liquidity Agreement and Ingram shall be released from all such duties
and obligations except as otherwise provided in this Amendment No. 2.
Further, in connection with the changes
effected by this Amendment No. 2, Micro will assume the duties of Ingram under
the Purchase Agreement and Micro will acquire all of the outstanding capital
stock of Funding. It is therefore agreed that from and after the
Reorganization Date, Micro shall assume all of the duties and obligations of
Ingram in connection with the Liquidity Agreement that do not relate to Ingram
in its role of servicer and that as of such date Ingram shall be released from
all of such duties and obligations.
B. Covenants of Micro
Micro hereby makes the covenants contained in
Sections 7.02(a), (b), (c), (d), (e) and (f) of the Liquidity Agreement,
substituting Micro for Ingram in each of such provisions. The Financial
Covenants contained in Section 7.02(g) shall be amended and become effective
from and after the date on which Micro acquires Funding from Ingram (the
"Acquisition Date") to be as follows:
Section 7.02(g) Financial Covenants. Micro will not permit:
(i) its consolidated current ratio at the end of
any Fiscal Period to be less than 1.0:1.0;
(ii) the ratio of (i) Consolidated EBITDA for any
period of four consecutive Fiscal Periods to
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(ii) Consolidated Interest Charges for such
period to be less than 3.5 to 1.0;
(iii) the ratio of (i) the average daily balances
of Consolidated Funded Debt during any Fiscal
Period to (ii) Consolidated EBITDA for the
period of four Fiscal Periods ending on the
last day of such Fiscal Period to exceed 3.5
to 1.0;
(iv) the Consolidated Tangible Net Worth as at the
end of any Fiscal Period to be less than the
sum of (i) the greater of (A) $500,000,000
and (B) an amount equal to 90% of
Consolidated Tangible Net Worth as at the end
of the Fiscal Year ending nearest to December
31, 1996, plus (ii) as of the end of each
Fiscal Year commencing with the Fiscal Year
ending closest to December 31, 1997, 67% of
Consolidated Net Income (without taking into
account any losses incurred in any Fiscal
Year) since the beginning of the Fiscal Year
which began closest to December 31, 1996; and
(v) except for dividends paid, or redemptions
made, in any Fiscal Year that do not exceed
fifty percent (50%) of Consolidated Net
Income for the immediately preceding Fiscal
Year, Micro will not declare or pay any
dividends (in cash, property or obligations)
or any other payments or distributions on
account of, or set apart money for a sinking
or analogous fund for, or purchase, redeem,
retire or otherwise acquire for value any of
its shares of capital stock now or hereafter
outstanding or any warrants, options or other
rights to acquire the same; return any
capital to its stockholders as such; or make
any distribution of assets to its
stockholders as such; provided, however, that
Micro may redeem, purchase or acquire any of
its capital stock (i) issued to employees
pursuant to any Plan or other contract or
arrangement relating to employment upon the
termination of employment or other events or
(ii) in a transaction contemplated by the
Transition Agreements.
Capitalized terms contained in this Section
7.02(g) and not otherwise defined herein shall have the respective meanings
ascribed to such terms in that certain Credit Agreement in the amount of
$1,000,000,000 among Micro, Xxxxxx European Coordination Center N.V., Xxxxxx
Micro Singapore PTE LTD., Ingram
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Micro Inc. (Canada) and certain financial institutions as named therein or any
successor agreement thereto (the "Credit Agreement").
C. Miscellaneous
Micro shall be substituted for Ingram in
Section 8.01(f) and the release of Ingram from responsibilities as provided in
this Amendment No. 2 shall not constitute an Event of Default under such
provision.
D. Extension of Term
By execution of this Amendment No. 2, each of
the Liquidity Agent and the Lead Managers agrees that the Liquidity Commitment
and its Percentage of the Liquidity Commitment is hereby extended until
December 31, 1999.
X. Notices. The notice provisions of each of the
documents being amended are hereby revised such that all notices previously
directed to Ingram, the Transferor, or Servicer shall be directed to Xxxxxx
Micro, Inc., 0000 X. Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attn:
Treasurer, with a copy to Xxxxxx Micro Inc., 0000 X. Xx. Xxxxxx Xxxxx, Xxxxx
Xxx, Xxxxxxxxxx 00000, Attn: General Counsel.
XI. Collateral Matters. The parties to this Amendment
No. 2 understand that in connection with the changes effected by this Amendment
No. 2, on or about the Reorganization Date Micro will acquire all of the
outstanding capital stock of Funding, and that Micro will acquire each of the
Subordinated Note, dated February 10, 1993 issued by Funding and the Revolving
Note dated as of February 10, 1993 issued by Funding and the right to all
payments made under each of such notes. For purposes of Section 7.01(h)(iv) of
the Liquidity Agreement and to the extent otherwise required by any of the
documents being amended by this Amendment No. 2 or by any other document or
agreement, by execution of this Amendment No. 2 each of the undersigned consent
to such transfers.
It is further understood and agreed that
prior to the Reorganization Date, Micro's parent, Xxxxxx Micro Holdings Inc.,
and Micro will each be merged into New Micro and, as a result thereof, New
Micro shall succeed to all of the rights and obligations of Micro under each of
the Agreements amended by this Amendment No. 2.
XII. Consent to Amendments. Each party hereto hereby
consents to each amendment to each Agreement provided for in this Amendment No.
2.
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XIII. Ratification of Agreements. As amended by this
Amendment No. 2, each Agreement is in all respects ratified and confirmed. To
the extent of any conflict or inconsistency between the Agreements and this
Amendment No. 2, it is agreed that the provisions of this Amendment No. 2 shall
control.
XIV. Counterparts. This Amendment No. 2 may be executed
in any number of counterparts, which may include facsimile counterparts, each
of which so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.
XV. Governing Law. THIS AMENDMENT NO. 2 SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
XVI. Confirmation of Ratings. This Amendment No. 2 shall
not become effective unless and until the Trustee shall have received written
confirmation from each Rating Agency that the effectiveness hereof will not
result in either the reduction or withdrawal of the ratings currently assigned
by such Rating Agency to both the Commercial Paper and the Class A Certificates
of each of the Series 1993-1, Series 1993-2, Series 1994-1, Series 1994-2 and
Series 1994-3.
XVII. The Trustee. The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or sufficiency of
this Amendment No. 2 or for or in respect of the recitals contained herein, all
of which recitals are made solely by Funding, Ingram and Micro.
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IN WITNESS WHEREOF, each of the parties to the Agreements has
caused this Amendment No. 2 to be executed by its duly authorized officer as of
the date set forth above and, as applicable, consents to each of the changes
effected thereby.
XXXXXX FUNDING INC.
By:
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Asst. Treasurer
XXXXXX INDUSTRIES INC.
By:
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: V.P. and Treasurer
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THE CHASE MANHATTAN BANK, as Trustee
By:
--------------------------------
Name:
Title:
XXXXXX MICRO INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Asst. Treasurer
XXXXXX ENTERTAINMENT INC.,
as successor to COMMTRON CORP.
By:
--------------------------------
Title: Vice Chairman and
Treasurer
DISTRIBUTION FUNDING CORPORATION
By:
--------------------------------
Name:
Title: Vice President
THE CHASE MANHATTAN BANK, as the Liquidity
Agent and as a Bank
By:
--------------------------------
Name:
Title: Vice President
NATIONSBANK OF NORTH CAROLINA, N.A.
By:
--------------------------------
Name:
Title: Senior Vice President
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THE BANK OF NOVA SCOTIA
By:
--------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
Atlanta Agency
By:
--------------------------------
Name:
Title:
The undersigned Certificateholders acknowledge and consent to
all of the foregoing amendments by execution below:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By:
--------------------------------
Name:
Title:
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
PACIFIC MUTUAL LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
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PACIFIC CORINTHIAN LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
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Exhibit A
Each of the Series 1993-1 Supplement, the Series 1993-2
Supplement, the Series 1994-1 Supplement, the Series 1994-2 Supplement and the
Series 1994-3 Supplement are hereby amended as follows (blanks in a Series
designation will be completed with the applicable Series designation for each
Supplement)
New subparagraphs 4.04(q), (r), (s) and (t) shall be added as
follows:
Section 4.04(q)
The Series Class B Certificate Collection Account. The
Trustee, for the benefit of the Certificateholders holding the Series _____
Certificates (the "Series _______ Certificateholders"), shall establish or
shall cause to be established and maintained with an Eligible Institution
(which may be the Trustee) in the name of the Trustee, on behalf of the Trust,
a segregated trust account (the "Series _____ Class B Certificate Collection
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Series __________ Certificateholders.
The Series _____ Class B Certificate Collection Account shall be under the sole
dominion and control of the Trustee for the benefit of the Series ______
Certificateholders. If, at any time, the institution holding the Series _____
Class B Certificate Collection Account ceases to be an Eligible Institution,
the Trustee shall within 30 days of a Responsible Officer learning of such
event establish a new Series _____ Class B Certificate Collection Account
meeting the conditions specified above with an Eligible Institution, transfer
any cash and/or any investments to such new Series _____ Class B Certificate
Collection Account and from the date such new Series _____ Class B Certificate
Collection Account is established, it shall be the "Series _____ Class B
Certificate Collection Account". Neither the Transferor nor the Servicer, nor
any person or entity claiming by, through or under the Transferor or Servicer,
shall have any right, title or interest in, or any right to withdraw any amount
from, the Series _____ Class B Certificate Collection Account except to the
extent provided in the Agreement as modified by this Supplement.
(r) Administration of the Series Class B Certificate
Collection Account. Funds on deposit in the Series _____ Class B Certificate
Collection Account shall at the direction of the Servicer be invested by the
Trustee in Permitted Investments that will mature so that such funds will be
available prior to the Payment Date following such investment. Any funds on
deposit in the Series _____ Class B Certificate Collection Account to be so
invested shall be invested solely in Permitted Investments. Any request by the
Servicer to invest funds on deposit in the Series _____ Class B Certificate
Collection Account shall be in writing and shall be deemed a certification by
the Servicer to the Trustee that the requested investment is a Permitted
Investment which
19
matures at or prior to the time required hereby. The Trustee shall maintain
possession of the negotiable instruments or securities, if any, evidencing the
Permitted Investments described in clause (a) of the definition thereof from
the time of purchase thereof until maturity. All interest and earnings (net of
losses and investment expenses) on funds on deposit in the Series _____ Class B
Certificate Collection Account ______ shall be paid by the Trustee to the
Transferor on each Payment Date.
(s) Identification of Series Class B Certificate
Collection Account. Schedule A, which is hereby incorporated into and made a
part of this Supplement, identifies the Series ___ Class B Certificate
Collection Account by setting forth the account number of such account, the
account designation of such account and the name and location of the
institution with which such account has been established.
(t) Application of Funds in the Series Class B
Certificate Collection Account. On each Payment Date funds available in the
Series _____ Class B Certificate Collection Account shall be applied for the
purposes provided in this Section 4.04; provided, however, if on any Payment
Date there shall be no Receivables held in the Trust, then any amounts held in
the Series ____ Class B Certificate Collection Account shall be applied (i)
first, to the payment of any amounts due on the Series ____ Class A
Certificates, and (ii) second, to the payment of any amounts due on the Series
____ Class B Certificates.
____________________
Section 4.04(h) of each Supplement shall be amended as
follows:
The last sentence of such subparagraph shall be deleted and
replaced with the following:
Notwithstanding the preceding sentence, from and after the
Amortization Period Commencement Date, all excess Series
_______Imputed Yield Collections shall first be allocated to
the payment of the unpaid Make-Whole Amount, if any, owing to
the Class A Certificateholders pursuant to Section 19 of the
Series ________ Supplement and, if sufficient funds have been
allocated to fully satisfy such unpaid Make-Whole Amount,
remaining excess Series ______ Imputed Yield Collections shall
be characterized as restricted funds ("Restricted Funds") in
respect of the Series _____ Certificates and deposited into
the Series _____ Class B Certificate Collection Account.
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____________________
Section 4.04(i) of each Supplement shall be amended to be as
follows:
(i) Class A Certificate Defaults. On each Settlement
Date, after giving effect to the payments required pursuant to Sections
4.04(a), (b) and (c) (including any payments from Undistributed Class B
Interest and Subordinated Series _____ Principal Collections with respect
thereto), the Trustee, acting in accordance with instructions from the
Servicer, shall pay, (i) from available Series ______ Imputed Yield Collections
and, (ii) from and after the Amortization Period Commencement Date, from any
amounts on deposit in the Series _____ Class B Certificate Collection Account,
an amount equal to the excess, if any, of (i) the product of (x) the Defaulted
Amount for the preceding Settlement Period as determined on the preceding
Determination Date and (y) the average Class A Invested Percentage during such
preceding Settlement Period over (ii) the aggregate Class A Default Amounts for
each Business Day in the preceding Settlement Period (in each case, without
regard to the aggregate amount of Class A Charge-Offs outstanding from previous
days) the "Class A Default Deficiency Amount"), (i) to the Holder of the
Transferor Certificate, during the Non-Amortization Period, but only to the
extent of available Series ________ Imputed Yield Collections (and, if
required, from Undistributed Class B Interest and Subordinated Series ________
Principal Collections) and (ii) to the Principal Funding Account, during the
Amortization Period to the extent of available Series _______ Imputed Yield
Collections (and, if required, from Undistributed Class B Interest, and
Subordinated Series _______ Principal Collections and amounts available in the
Series _____ Class B Certificate Collection Account). If available Series
_______ Imputed Yield Collections are less than the Class A Default Deficiency
Amount, the Trustee, acting in accordance with instructions from the Servicer,
shall determine the aggregate amount paid to the Holder of the Transferor
Certificate during the preceding Settlement Period pursuant to Section 4.04(h)
and shall deem such payments to have been made in satisfaction of such Class A
Default Deficiency Amount, up to the amount thereof. Any amounts
recharacterized as payments of the Class A Default Deficiency Amount and any
amounts from the Series _____ Class B Certificate Collection Account applied
under this Section 4.04(i) shall be treated, for all purposes hereunder, as
payments in respect of Principal Receivables.
____________________
Section 4.04(j) of each Supplement shall be amended to be as
follows:
(j) Settlement Date Adjustment and Reimbursement of Class
A Charge-Offs. On each Settlement Date, the Trustee, acting
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in accordance with instructions from the Servicer, shall reduce the aggregate
amount of Class A Charge-Offs, if any, and correspondingly increase the Class A
Invested Amount, to the extent of the excess, if any, of (i) the aggregate
Class A Default Amounts for each Business Day in the preceding Settlement
Period over (ii) the product of (x) the Defaulted Amount for the preceding
Settlement Period as determined on the preceding Determination Date and (y) the
average Class A Invested Percentage during such preceding Settlement Period.
On each Settlement Date, after giving effect to such reduction and to the
payments required pursuant to Sections 4.04(a), (b), (c) and (i) (including any
payments from Undistributed Class B Interest, Subordinated Series ________
Principal Collections with respect thereto and funds from the Series _____
Class B Certificate Collection Account), the Trustee, acting in accordance with
instructions from the Servicer, shall pay, (i) from available Series _________
Imputed Yield Collections and, (ii) from and after the Amortization Period
Commencement Date from any amounts on deposit in the Series _____ Class B
Certificate Collection Account, an amount equal to the sum of (x) the aggregate
amount of Class A Charge-Offs, if any, which have not theretofore been
reimbursed pursuant to Section 4.04(d) and this Section 4.04(j) and (y) the
excess of the amount determined in accordance with Section 4.04(i) over the
amount paid or characterized as having been paid with respect thereto pursuant
to the first and second sentences of Section 4.04(i) ("Unreimbursed Class A
Charge-Offs"), (i) to the Holder of the Transferor Certificate, during the
Non-Amortization Period, but only to the extent of available Series __________
Imputed Yield Collections (and, if required, from Undistributed Class B
Interest and Subordinated Series __________ Principal Collections), and (ii) to
the Principal Funding Account, during the Amortization Period to the extent of
Series ________ Imputed Yield Collections (and, if required, from Undistributed
Class B Interest, Subordinated Series _________ Principal Collections and funds
from the Series _____ Class B Certificate Collection Account), and the Class A
Invested Amount shall be increased by the amount so paid or deposited. Any
such amounts paid under this Section 4.04(j) shall be treated, for all purposes
hereunder, as payments in respect of Principal Receivables.
____________________
Section 4.04(k) of each Supplement shall be amended to be as
follows:
(k) Class B Certificate Defaults. On each Settlement
Date, after giving effect to the payments required pursuant to Sections
4.04(a), (b), (c), (i), (j), (e) and (f), the Trustee, acting in accordance
with instructions from the Servicer, shall pay, solely from available Series
______ Imputed Yield Collections, but if there shall then no longer be any
Class A Certificates outstanding and unpaid, then also from any amounts on
deposit in the Series _____ Class B Certificate Collection Account, an amount
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equal to the excess, if any, of (i) the product of (x) the Defaulted Amount for
the preceding Settlement Period as determined on the preceding Determination
Date and (y) the average Class B Invested Percentage during such preceding
Settlement Period over (ii) the aggregate Class B Default Amounts for each
Business Day in the preceding Settlement Period (in each case, without regard
to the aggregate amount of Class B Charge-Offs outstanding from previous days)
(the "Class B Default Deficiency Amount"), (i) to the Holder of the Transferor
Certificate, during the Non-Amortization Period, but only to the extent of
available Series ________ Imputed Yield Collections, and (ii) to the Principal
Funding Account, during the Amortization Period to the extent of available
Series ________ Imputed Yield Collections, but if there shall no longer be any
Class A Certificates outstanding and unpaid, then also from any amounts on
deposit in the Series _____ Class B Certificate Collection Account. If
available Series ________ Imputed Yield Collections are less than the Class B
Default Deficiency Amount, the Trustee, acting in accordance with instructions
from the Servicer, shall determine the aggregate amount paid to the Holder of
the Transferor Certificate during the preceding Settlement Period pursuant to
Section 4.04(h) and shall deem such payments to have been made in satisfaction
of such Class B Default Deficiency Amount, up to the amount thereof. Any
amounts recharacterized as payments of the Class B Default Deficiency Amount
shall be treated, for all purposes hereunder, as payments in respect of
Principal Receivables. Notwithstanding anything to the contrary in this
Section 4.04(k), from and after the Amortization Period Commencement Date,
until the Class A Invested Amount and all accrued interest thereon has been
paid to, or deposited for the benefit of, the Class A Certificateholders, no
allocation of available Series _________ Imputed Yield Collections to the Class
B Default Deficiency Amount shall be made under this Section 4.04(k).
____________________
Section 4.04(l) of each Supplement shall be amended to be as
follows:
(l) Settlement Date Adjustment and Reimbursement of Class
B Charge-Offs. On each Settlement Date, the Trustee, acting in accordance with
instructions from the Servicer, shall reduce the aggregate amount of Class B
Charge-Offs, if any, and correspondingly increase the Class B Invested Amount,
to the extent of the excess, if any, of (i) the aggregate Class B Default
Amounts for each Business Day in the preceding Settlement Period over (ii) the
product of (x) the Defaulted Amount for the preceding Settlement Period as
determined on the preceding Determination Date and (y) the average Class B
Invested Percentage during such preceding Settlement Period. On each
Settlement Date, after giving effect to such reduction and to the payments
required pursuant to Sections 4.04(a), (b), (c), (i), (j), (e), (f) and (k),
the
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Trustee, acting in accordance with instructions from the Servicer, shall pay,
solely from available Series _______ Imputed Yield Collections but if there
shall no longer be any Class A Certificates outstanding and unpaid, then also
from any amounts on deposit in the Series _____ Class B Certificate Collection
Account, an amount equal to the sum of (x) the aggregate amount of Class B
Charge-Offs, if any, which have not theretofore been reimbursed pursuant to
Section 4.04(g) and this Section 4.04(l) and (y) the excess, if any, of the
amount determined pursuant to the first sentence of Section 4.04(k) over the
amount paid or characterized as having been paid with respect thereto pursuant
to the first and second sentences of Section 4.04(k) ("Unreimbursed Class B
Charge-Offs"), (i) to the Holder of the Transferor Certificate, during the Non-
Amortization Period, but only to the extent of available Series _______ Imputed
Yield Collections, and (ii) to the Principal Funding Account, during the
Amortization Period to the extent of Series _________ Imputed Yield
Collections, but if there shall no longer be any Class A Certificates
outstanding and unpaid, then also from any amounts on deposit in the Series
_____ Class B Certificate Collection Account, and the Class B Invested Amount
shall be increased by the amount so paid or deposited. Any amounts paid under
this Section 4.04(l) shall be treated, for all purposes hereunder, as payments
in respect of Principal Receivables. Notwithstanding anything to the contrary
in this Section 4.04(l), from and after the Amortization Period Commencement
Date, until the Class A Invested Amount and all accrued interest thereon has
been paid to, or deposited for the benefit of, the Class A Certificateholders,
no allocation of available Series ________ Imputed Yield Collections to
Unreimbursed Class B Charge-Offs shall be made under this Section 4.04(l).
____________________
Section 4.04(m) of each Supplement shall be amended to be as
follows:
(m) Settlement Date Payments and Deposits of Excess
Series Imputed Yield Collections. On each Settlement Date, after giving
effect to the payments required pursuant to Sections 4.04(a), (b), (c), (i),
(j), (e), (f), (k) and (l), the Trustee, acting in accordance with instructions
from the Servicer, shall pay or deposit, as applicable, all remaining Series
_______ Imputed Yield Collections, and, if there shall no longer remain any
Class A Certificates outstanding and unpaid, then also all amounts remaining in
the Series _____ Class B Certificate Collection Account, (i) if the Transferor
Eligible Amount as of the end of the preceding Business Day is greater than or
equal to the Transferor Minimum Amount, to the Holder of the Transferor
Certificate and (ii) if the Transferor Eligible Amount as of the end of the
preceding Business Day is less than the Transferor Minimum Amount, first, to
the Transferor Account to the extent required to cause the Transferor Eligible
Amount to be not less than the Transferor
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Minimum Amount, and second, any remaining Series _________ Imputed Yield
Collection, to the Holder of the Transferor Certificate. Notwithstanding the
preceding sentence, from and after the Amortization Period Commencement Date
until there shall no longer be any Class A Certificates remaining outstanding
and unpaid, all excess Series _______ Imputed Yield Collections shall be
deposited into the Series _____ Class B Certificate Collection Account.
____________________
Section 4.04(n) of each Supplement shall be amended to be as
follows:
(n) Undistributed Series Imputed Yield
Collections. If, as of the end of any day on which Series _______ Imputed
Yield Collections are to be distributed pursuant to Sections 4.04(c), (d), (f),
(g), (h), (i), (j), (k), (l) or (m), such payments would cause the Transferor
Eligible Amount, after taking into account payments to the Transferor pursuant
to Section 4.03 and Sections 4.04(c), (d), (f), (g), (h), (i), (j), (k), (l)
and (m) and the increase in the Transferor Eligible Amount resulting from the
transfer of any new Receivables to the Trust as of such day, to be less than
the Transferor Minimum Amount (any such Series ______ Imputed Yield Collections
to the extent applied to reduce the Transferor Eligible Amount to the
Transferor Minimum Amount being referred to as "Distributed Series
Imputed Yield Collections"), then the Trustee, acting in accordance with
instructions from the Servicer, shall pay or deposit, as applicable, any Series
_________ Imputed Yield Collections allocated to the Holder of the Transferor
Certificate in excess of Distributed Series ________ Imputed Yield Collections
("Undistributed Series Imputed Yield Collections"), first, to the
Transferor Account to the extent required to cause the Transferor Eligible
Amount to be not less than the Transferor Minimum Amount, and second, any
remaining Series ________ Imputed Yield Collections to the Holder of the
Transferor Certificate. Notwithstanding the preceding sentence, from and after
the Amortization Period Commencement Date until there shall no longer be any
Class A Certificates remaining outstanding and unpaid, all Undistributed Series
_______ Imputed Yield Collections shall be deposited into the Series _____
Class B Certificate Collection Account.
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EXHIBIT B
"CMD" shall refer to the operations categorized as the
Consumer Markets Division from time to time on the internal records of Micro,
which operations generally include the marketing of products to certain
retailers engaged in mass marketing. It is understood and agreed that the
activities so categorized and the specific obligors included therein may change
from time to time in the good faith determination of Micro.
