EXHIBIT 10.40
AMENDMENT NO. 2 TO SFC MASTER TRUST
POOLING AGREEMENT
Amendment, dated as of December 27 1996 (the
"Amendment") to the Pooling Agreement, dated as of November
16, 1994 (as amended the "Pooling Agreement"), among
Specialty Foods Finance Corporation, a Delaware corporation
(the "Company"), Specialty Foods Corporation, a Delaware
corporation, as master servicer (the "Master Servicer"), and
The Chase Manhattan Bank (formerly known as Chemical Bank),
as trustee (in such capacity, the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company has informed the Trustee that it
would like to sell those Receivables originated by the 1996
Terminated Sellers (as defined below);
WHEREAS, such sale would be a repurchase of assets
previously sold to the Trust by the Company;
WHEREAS, the Trustee has agreed to accept the
Company's offer to purchase such Receivables;
WHEREAS, the parties hereto wish to amend the Pooling
Agreement in the manner provided for in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. Defined Terms. Unless otherwise defined herein,
terms defined in the Pooling Agreement shall have their
defined meanings when used herein, as the context requires.
2. Amendment of the Pooling Agreement. The Pooling
Agreement is hereby amended as follows:
(a) Article X of the Pooling
Agreement is hereby amended by adding
the following paragraph after Section
10.21:
(i) "10.22 Termination
of Certain Sellers. In accordance with
Section 2.8(g) hereof, as amended by
Amendment No. 1 to the Pooling
Agreement, and the procedure set forth
in Section 10.1 hereof, the Trustee
acknowledges that as of the 1996 Seller
Termination Date (as defined herein),
Xxxxx & Xxxxxx, Inc., B&G Foods, Inc.,
Xxxxx & Xxxxxxxxxxxx, Inc., and Roseland
Manufacturing, Inc. (the "1996
Terminated Sellers") will be terminated
as Sellers pursuant to Section 9.14 of
the Amended and Restated Receivables
Sale Agreement (as amended by Amendment
No. 2 thereto) and as Servicers under
the Servicing Agreement.
Upon the 1996 Seller Termination Date
and simultaneously with the payment to
the Trustee of the Purchase Price (as
defined below), the Trustee agrees to
sell, assign and convey to the Company
(without recourse, representation or
warranty) all right, title and interest
of the Trust in the Receivables
originated by the 1996 Terminated
Sellers and other Trust Assets related
to such Receivables originated by a 1996
Terminated Seller, and all proceeds
thereof. Upon receipt of the Purchase
Price, the Trustee shall deposit such
funds in the Collection Account and
shall treat them as Collections for all
purposes hereunder. The Trustee shall
also (i) notify The Bank of New York, as
the the lockbox bank, of the termination
of the Lockbox Account (The Bank of New
York - Account No. 8900208228), (ii)
execute a Master Xxxx of Sale and
Assignment for the Receivables of each
1996 Terminated Seller and (iii) sign
and deliver to the Company for filing
the necessary UCC financing statements
releasing the liens against the 1996
Terminated Sellers.
In accordance with Section 2.8(g)
hereof, the Company shall be permitted
to assign and convey such Receivables,
other Trust Assets and proceeds to (A) B
Companies Acquisition Corp. and/or (B)
any affiliate of B Companies Acquisition
Corp., in exchange for the Purchase
Price. For purposes of this section the
"Purchase Price" means with respect to
each 1996 Terminated Seller an amount of
immediately available funds equal to the
product of (x) the then aggregate
outstanding Principal Amount of
Receivables of such Seller (which is
understood to be net of Charge-Offs)
multiplied by (y) the most recent
Discounted Percentage with respect to
the Receivables of such 1996 Terminated
Seller as determined in accordance with
Schedule 3 of the Receivables Sale
Agreement (the "Purchase Price").
(b) Article 1 of the Pooling
Agreement is hereby further amended to
add the following definition after the
definition of "Mother's":
""1996 Seller Termination Date" shall
mean December __, 1996."
3. Conditions to Effectiveness. This Amendment
shall become effective upon receipt by the Trustee of:
(a) The Purchase Price;
(b) a counterpart hereof, duly
executed and delivered by each of the
Company, the Master Servicer, the Servicers
and the Trustee;
(c) a consent to this Amendment,
in the form of Annex A, from Capital Markets
Assurance Corporation, as the Enhancement
Provider and the Control Party for each of
the Term Certificates, Series 1994-1, and VFC
Certificates, Series 1996-1;
(d) a secretary's certificate
from each of the Company and the Master
Servicer certifying (i) board resolutions
authorizing the execution and delivery of
this Amendment, (ii) the incumbency of the
natural persons authorized to execute and
deliver this Amendment, (iii) the charter and
bylaws of the Company or the Master Servicer,
as the case may be, being correct and in full
force and effect and (iv) copies of "good
standing" certificates issued by the
Secretary of State of the State of Delaware,
certifying that each of the Company and the
Master Servicer, as the case may be, is in
good standing and has paid all taxes due to
the State of Delaware, and including as
annexes thereto the certificate of
incorporation of the Company or the Master
Servicer, as the case may be;
(e) an officer's certificate of
a Responsible Officer of the Company
certifying that this Amendment shall not
adversely affect in any material respect the
interests of the Series 1994-1 Term
Certificateholders or the Series 1996-1
Initial VFC Certificateholder;
(f) an opinion of counsel of
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx,
counsel to the Company and the Master
Servicer, opining as to (i) this Amendment
being authorized pursuant to the Pooling
Agreement, the Series 1994-1 Supplement and
the Series 1996-1 Supplement, and (ii) all
conditions precedent to the execution,
delivery and performance of this Amendment
being satisfied in full; and
(g) written confirmation from
each of Standard & Poor's Corporation and
Xxxxx'x Investors Service Inc. stating that
the execution and delivery of this Amendment
will not result in a reduction or withdrawal
of the rating of the Term Certificates.
4. Continuing Effect of the Pooling
Agreement. Except as expressly amended,
modified and supplemented hereby, the
provisions of the Pooling Agreement are and
shall remain in full force and effect.
5. GOVERNING LAW. THIS AMENDMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAW.
6. Counterparts. This Amendment may
be executed in two or more counterparts (and
by different parties on separate
counterparts), each of which shall be an
original, but all of which together shall
constitute one and the same instrument
IN WITNESS WHEREOF, the parties have
caused this Amendment to be duly executed by
their respective officers as of the day and
year first above written.
SPECIALTY FOODS FINANCE CORPORATION
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President & Treasurer
SPECIALTY FOODS CORPORATION, as Master
Servicer
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Trust Officer
Annex A
[FORM OF CONSENT]
Consent of Capital Markets Assurance Corporation
The Chase Manhattan Bank,
as Trustee
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Services (ABS)
Dear Sirs:
We refer to the Amendment, dated as of December ___,
1996 (the "Amendment"), to the Pooling Agreement, dated as
of November 16, 1994 (the "Pooling Agreement"), among
Specialty Foods Finance Corporation, a Delaware corporation
(the "Company"), Specialty Foods Corporation, a Delaware
corporation, as master servicer the "Master Servicer"), and
The Chase Manhattan Bank (formerly known as Chemical Bank),
as trustee (in such capacity, the "Trustee"). We hereby
certify that we have been given adequate notice pursuant to
Section 10.1 of the Pooling Agreement, Section 8.5 of the
Series 1994-1 Supplement and Section 9.5 of the Series 1996-
1 Supplement.
We hereby consent to the execution and delivery of
the Amendment (substantially in the form previously
distributed to us) by the Company, the Master Servicer and
the Trustee on our behalf.
Sincerely,
CAPITAL MARKETS ASSURANCE CORPORATION
By:
Name:
Title:
Dated: December ____, 1996
