EXHIBIT 10.41
EXECUTION COPY
AMENDMENT NO. 1
TO
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
Dated as of October 24, 2003
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED RECEIVABLES SALE
AGREEMENT (this "Amendment") is entered into as of October 24, 2003 by and
between INGRAM FUNDING, INC., a Delaware corporation (the "Company") and INGRAM
MICRO INC., a Delaware corporation ("Ingram Micro"). Capitalized terms used in
this Amendment which are not otherwise defined herein shall have the meanings
given such terms in the Amended and Restated Receivables Sale Agreement referred
to below or the "Pooling Agreement" defined therein.
RECITALS:
WHEREAS, the Company and Ingram Micro, in its capacities as
seller and servicer, are parties to an Amended and Restated Receivables Sale
Agreement dated as of March 8, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Receivables Sale Agreement"); and
WHEREAS, the Company and Ingram Micro have agreed to amend the
Receivables Sale Agreement on the terms and conditions set forth herein and in
the Receivables Sale Agreement;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Ingram Micro hereby agree as follows.
1. Amendment to Receivables Sale Agreement. Effective as
of the date hereof and subject to the satisfaction of the conditions precedent
set forth in Section 2 below, the Receivables Sale Agreement is amended to
replace Schedule 3 thereto with Schedule 3 attached hereto.
2. Conditions of Effectiveness of this Amendment. This
Amendment shall become effective as of the date hereof (the "Effective Date")
when, and only when, the Agent shall have received each of the following:
(a) counterparts of this Amendment duly
executed by the Company, Ingram Micro and the Agent;
(b) evidence satisfactory to the Agent
that the Rating Agency Condition is satisfied; and
(c) such other documents, instruments
and agreements as the Agent may reasonably request.
3. Representations and Warranties.
3.1 Upon the effectiveness of this Amendment,
the Company and Ingram Micro each (a) hereby reaffirms in all material
respects all covenants, representations and warranties made by it in
the Receivables Sale Agreement and each other Transaction Document to
the extent the same are not amended hereby and except to the extent the
same expressly relates solely to an earlier date, (b) agrees that all
such covenants, representations and warranties shall be deemed to have
been re-made as of the Effective Date of this Amendment and (c)
represents and warrants that, as of the Effective Date of this
Amendment and after giving effect hereto, no Early Amortization Event,
Servicer Default, or event which with the giving of notice or passage
of time, or both, would constitute an Early Amortization Event or
Servicer Default has occurred and is continuing.
3.2 The Company and Ingram Micro hereby
represent and warrant that this Amendment and the Receivables Sale
Agreement, as amended hereby, constitute legal, valid and binding
obligations of such Person (to the extent a party thereto) and are
enforceable against such Person in accordance with their respective
terms.
4. Reference to and Effect on Transaction Documents.
4.1 Upon the effectiveness of this Amendment,
each reference to the Receivables Sale Agreement in any of the
Transaction Documents shall mean and be a reference to the Receivables
Sale Agreement as amended hereby.
4.2 Except as specifically set forth above, the
Receivables Sale Agreement, and all other documents, instruments and
agreements executed and/or delivered in connection therewith, shall
remain in full force and effect, and are hereby ratified and confirmed.
4.3 The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of the Company or the Agent,
nor constitute a waiver of any provision of any of the Transaction
Documents, or any other documents, instruments and agreements executed
and/or delivered in connection therewith.
5. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
6. Counterparts. This Amendment may be executed by one
or more of the parties to this Amendment on any number of separate counterparts
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed counterpart of a signature page
to this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
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7. Entire Agreement. This Amendment, taken together with
the Receivables Sale Agreement and all of the other Transaction Documents,
embodies the entire agreement and understanding of the parties hereto and
supersedes all prior agreements and understandings, written and oral, relating
to the subject matter hereof.
8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW).
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IN WITNESS WHEREOF, this Amendment No. 1 has been duly
executed as of the day and year first above written.
INGRAM FUNDING INC.
By: /s/ James F. Ricketts
--------------------------------------------
Name: James F. Ricketts
Title: Treasurer
INGRAM MICRO INC.
By:/s/ James F. Ricketts
--------------------------------------------
Name: James F. Ricketts
Title: Corporate Vice President & Treasurer
Signature Page
to
Amendment No.1
to
Amended and Restated Receivables Sale Agreement
Acknowledged and agreed to:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By: /s/ Howard Bailey
------------------------------
Name: Howard Bailey
Title: Duly Authorized Signatory
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Trustee
By: /s/ Joseph M. Costantino
------------------------------
Name: Joseph M. Costantino
Title: Trust Officer
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, as Class A Certificateholder
By: Prudential Investment Management, Inc., as
Investment Advisor
By: /s/ Michael J. Bozzo
------------------------------
Name: Michael J. Bozzo
Title: Vice President
AMBAC ASSURANCE CORPORATION, as Insurer
By: /s/ Nicholas G. Goumas
-------------------------------
Name: Nicholas G. Goumas
Title: Managing Director
Signature Page
to
Amendment No.1
to
Amended and Restated Receivables Sale Agreement