AMENDMENT NO. 4 TO POOLING AGREEMENT AND
AMENDMENT NO. 1 TO SERIES 1994-1 SUPPLEMENT
Amendment, dated as of December 5, 1997 (this "Amendment")
to each of:
(a) the SFC Master Trust Pooling Agreement (as amended and
in effect on the date hereof, the "Pooling Agreement"), dated as
of November 16, 1994, by and 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"); and
(b) the Series 1994-1 Supplement (the "Series 1994-1
Supplement"), dated as of November 16, 1994, to the Pooling
Agreement among the Company, the Master Servicer and the Trustee.
W I T N E S S E T H :
WHEREAS, the Company has informed the Trustee that it
desires to sell those Receivables originated by the Stella
Terminated Sellers (as defined below);
WHEREAS, such sale would require a purchase of receivables
previously sold to the Trust by the Company;
WHEREAS, the Trustee has agreed to accept the Company's
offer to purchase such Receivables; and
WHEREAS, to effectuate the aforementioned transactions, the
parties hereto wish to amend the Pooling Agreement and the Series
1994-1 Supplement in the manner provided for in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms not defined herein
shall have the meanings ascribed to them in the Pooling Agreement
as supplemented by the Series 1994-1 Supplement.
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 10.24:
"10.24 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 Stella
Termination Date (as defined herein), Stella Foods, Inc. and
Stella Foods East, Inc. (together, the "Stella Terminated
Sellers") will be terminated as Sellers pursuant to Section
9.14(b) of the Receivables Sale Agreement (as amended by
Amendment No. 4 thereto dated as of December 5, 1997) and as
Servicers under the Servicing Agreement.
On the Stella Termination Date upon 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 Stella Terminated
Sellers, all other Trust Assets related to such Receivables
originated by each Stella Terminated Seller, and all proceeds of
the foregoing. 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. At such
time, the Trustee shall also (i) notify First Bank Milwaukee, the
lockbox bank, of the termination of the Lockbox Account with
First Bank Milwaukee - Account No. 18233025666, which account
relates to Receivables generated solely by the Stella Termination
Sellers, (ii) execute a Master Xxxx of Sale and Assignment to the
Company for the Receivables of each Stella Terminated Seller and
(iii) sign and deliver to the Company for filing the necessary
UCC financing statements releasing the liens of the Trustee
against the Stella Terminated Sellers and any of their respective
properties.
In accordance with Section 2.8(g) hereof, the Company shall be
permitted to assign and convey such Receivables, and other Trust
Assets and proceeds related to such Receivables to (A) Xxxxxx
Acquisition, Inc. and/or (B) any affiliate of Xxxxxx Acquisition,
Inc. in exchange for the Purchase Price. For purposes of this
section the "Purchase Price" means with respect to each Stella
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 Stella
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 "Stella
East's":
"Stella Termination Date" shall mean December 5, 1997.
3. Amendment to the Series 1994-1 Supplement. The Series
1994-1 Supplement is hereby amended by deleting the reference to
"1.5" in the definition of "Ratings Multiple" in Section 1.1
thereof and inserting in lieu thereof the following: "2".
4. 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 and the Trustee;
(c) a consent to this Amendment, in the form of
Annex A, from Capital Markets Assurance Corporation ("CapMAC"),
as the Enhancement Provider and the Control Party for the Term
Certificates, Series 1994-1;
(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;
(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 and the Series 1994-1
Supplement and (ii) all conditions precedent to the execution,
delivery and performance of this Amendment being satisfied in
full;
(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 any current rating of the Term
Certificates;
(h) written confirmation from CapMAC that it has received (1) an
irrevocable Optional Termination Notice executed by the Company
in accordance with Section 2.5(b)(i) of the Series 1994-1
Supplement declaring that the Revolving Period shall terminate on
March 31, 1998 and (2) an amendment to the Surety Fee Letter (as
defined in the Insurance Agreement) executed by the Company in
form and substance satisfactory to CapMAC, as issuer;
(i) evidence that the VFC Certificates (as defined in the Series
1997-1 Supplement, dated as of January 31, 1997, to the Pooling
Agreement) have been cancelled and the Commitments (as defined
therein) terminated, with the consent of the Purchaser (as
defined therein);
(j) a pro forma Settlement Statement as of the Stella
Termination Date after giving effect to the transactions
contemplated to occur on such date;
(k) a request from the Company under Section 2.5(a)(ii) of the
Series 1994-1 Supplement to reduce the Invested Amount of the
Term Certificates on the next Distribution Date to $50,000,000;
and
(l) the documents referred to in paragraph 4 of Amendment No. 4,
dated as of December 5, 1997, to the Receivables Sales Agreement.
5. Continuing Effect of the Pooling Agreement. Except as
expressly amended, modified and supplemented hereby, the
provisions of the Pooling Agreement and the Series 1994-1
Supplement are and shall remain in full force and effect.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS INTERNAL OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES THEREOF, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAW.
7. 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:
Name:
Title:
SPECIALTY FOODS CORPORATION, as Master Servicer
By:
Name:
Title:
THE CHASE MANHATTAN BANK, as Trustee
By:
Name:
Title:
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 5, 1997 (the
Amendment), to the Pooling Agreement, dated as of November 16,
1994, as amended (the Pooling Agreement), by and 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), and the Series 1994-1 Supplement. We hereby
certify that we have been given or have duly waived adequate
notice of the Amendment pursuant to Section 10.1 of the Pooling
Agreement and Section 8.5 of the Series 1994-1 Supplement, dated
as of November 16, 1994, to the Pooling Agreement by and among
the Company, the Master Servicer and the Trustee.
We hereby consent to the execution and delivery of the
Amendment (substantially in the form attached hereto) by the
Company, the Master Servicer and the Trustee on our behalf.
Sincerely,
CAPITAL MARKETS ASSURANCE CORPORATION
By:
Name:
Title:
Dated: December ____, 1997
cc: Specialty Foods Finance Corporation
Specialty Foods Corporation
