EXHIBIT 10.17.2
SECOND AMENDMENT
TO POOLING AND SERVICING AGREEMENT
This Second Amendment (the "Amendment"), dated as of April 25, 1994, by
and between RI Receivables, Inc., a Delaware corporation ("Transferor"), Rohr,
Inc., a Delaware corporation ("Rohr"), and Bankers Trust Company, a New York
State banking corporation as Trustee (the "Trustee"), amends that certain
Pooling and Servicing Agreement (the "Agreement") dated as of December 23, 1992
among the Transferor, Rohr and the Trustee. Capitalized terms used in this
Amendment and not defined herein shall have the respective meaning ascribed to
them in the Agreement.
The parties hereto agree as follows:
1. Amendment to Agreement. The Agreement is amended, effective as of the
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date hereof, as follows:
(a) The definition of "Cure Funds" contained in Section 1.01 of the
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Agreement is amended to read as follows:
"'Cure Funds' shall mean amounts deposited to the Reserve Fund
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pursuant to the definition of 'Cure Period' or the second proviso of the
first sentence of Section 4.04(a). In addition, amounts held in the
Concentration Account pursuant to the second proviso of the first sentence
of Section 4.04(a) shall be deemed, for purposes of this Agreement, to be
Cure Funds held in the Reserve Fund."
(b) The definition of "Cure Period" contained in Section 1.01 of the
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Agreement is amended to read as follows:
"'Cure Period' shall mean the period (i) beginning on the day on which
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a Partial Amortization Period would otherwise commence, if the Transferor
shall have notified the Servicer and the Trustee in writing on such day
that, until the end of the Cure Period, the Servicer shall (on such day and
continuing on each day thereafter on which it receives any amount of
Collections either allocated to the Transferor Interest or allocated to the
Investor Interest and to be paid to the
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Transferor for reinvestment pursuant to Section 4.04(a)) deposit all such
amounts of Collections to the Reserve Fund on the day collected, and (ii)
continuing until either: (a) the percentage that is the Transferor
Percentage equals at least 2% and the Net Receivable Balance equals at
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least 120% of the excess of the Invested Amount over the Cure Funds held in
the Reserve Fund at such time; or (b) the Servicer shall have failed at any
time to deposit to the Reserve Fund an amount of Collections which the
Servicer is obligated to deposit to the Reserve Fund pursuant to clause (i)
above in connection with such Cure Period, at which time a Partial
Amortization Period would commence as set forth in the definition of the
term 'Partial Amortization Period' contained in this Section 1.01.
Notwithstanding the foregoing, if the Servicer deposits any amount of Cure
Funds into the Reserve Fund, or holds any amount in the Concentration
Account pursuant to the second proviso of the first sentence of Section
4.04(a), and if such amount, together with the aggregate amount of all
other Cure Funds held in the Reserve Fund at such time, would exceed 20% of
the Invested Amount, the Transferor shall promptly provide written notice
to the Trustee and each Investor Certificateholder that the aggregate
amount of all Cure Funds exceeds 20% of the Invested Amount. If any
Investor Certificateholder objects to the aggregate amount of Cure Funds
exceeding 20% of the Invested Amount, and provides written notice of such
objection to the Transferor and the Trustee on or prior to 3:00 p.m. (New
York City time) on the second Business Day after the day such Investor
Certificateholder received the written notice from the Transferor, then a
Partial Amortization Period shall commence as of the date of the deposit."
(c) The definition of "Partial Amortization Period" contained in Section
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1.01 of the Agreement is amended to read as follows:
"'Partial Amortization Period' shall mean, unless the Amortization
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Period shall have commenced prior thereto, either (a) the period beginning
on the third Business Day following the Business Day on which the
Transferor shall request the commencement of such period and the reduction
during such period of the Invested Amount by a specified amount pursuant to
Sections 4.04(b) and 5.01(b), in a writing furnished by the Transferor to
the Trustee (provided that the amount by which the Invested Amount is to be
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reduced as a result of the commencement of such period, as so specified in
such writing, must be in
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increments of $5,000,000) and continuing each day thereafter until the
Invested Amount shall have been reduced by such specified amount pursuant
to Section 4.04(b) and 5.01(b); (b) the period beginning on the day on
which either (i) the percentage that is the Transferor Percentage falls
below 2%, and continuing each day thereafter until the percentage that is
the Transferor Percentage shall have increased to at least 2%, or (ii) the
Net Receivables Balance falls below 120% of the excess of the Invested
Amount over the Cure Funds held in the Reserve Fund at such time, and
continuing each day thereafter until the Net Receivables Balance shall be
equal to or greater than 120% of the excess of the Invested Amount over the
Cure Funds held in the Reserve Fund at such time; or (c) the period
beginning on the Business Day on which an Investor Certificateholder shall
have objected, in accordance with the definition of 'Cure Period', to the
Cure Funds exceeding 20% of the Invested Amount, and continuing each day
thereafter until (1) the Invested Amount shall have decreased by an amount
equal to the sum of all deposits to the Reserve Fund since the date of the
Transferor notice which preceded the Investor Certificateholder's objection
and any amount of Investor Collections then held in the Concentration
Account pursuant to the second proviso of the first sentence of Section
4.04(a), (2) the percentage that is the Transferor Percentage is equal to
at least 2%, and (3) the Net Receivables Balance is equal to at least 120%
of the excess of the Invested Amount over the Cure Funds held in the
Reserve Fund at such time; provided, however, that upon the commencement of
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a Partial Amortization Period the Transferor shall pay to the Trustee for
the account of the Investor Certificateholders the estimated Market Make
Whole Premium with respect to such period in accordance with the provisions
of Section 4.05. With respect to any Partial Amortization Period described
in subsection (c) hereof, the Transferor will cause the Trustee to pay from
the Reserve Fund to the Paying Agent, for distribution to the Investor
Certificateholders, an amount equal to the sum of all deposits to the
Reserve Fund since the date of the Transferor notice which preceded the
Investor Certificateholder's objection and any amount of Investor
Collections then held in the Concentration Account pursuant to the second
proviso of the first sentence of Section 4.04(a). The payment of such
amount shall be in addition to any amounts payable pursuant to Section
5.01(b) hereof.
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(d) The second paragraph of Section 4.03 of the Agreement is amended to
read as follows:
"In the case of Cure Funds held in the Reserve Fund from time to time,
the Trustee shall release all or a portion of such Cure Funds to the
Transferor as soon as reasonably practicable (but in no event later than
one Business Day after the delivery of a written request therefor) if, but
only if, the Transferor shall have delivered to the Trustee a written
request for such release substantially in the form of Exhibit G hereto and
no Partial Amortization Period or Amortization Period shall have commenced
and be continuing or would commence after giving effect to such release;
provided however, the Trustee shall not release any such funds during the
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two day period that Investor Certificateholders may object to certain
deposits into the Reserve Fund in accordance with the last sentence of the
definition of 'Cure Period.'"
(e) The proviso in the first sentence of Section 4.04(a) is amended to read
as follows:
"provided however, in no event shall the recomputation of the Floating
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Allocation Percentage or the deposit of Investor Collections to the
Transferor's Account reduce either (i) the Transferor Percentage below
2% or (ii) the Net Receivables Balance below 120% of the excess of the
Invested Amount over the Cure Funds held in the Reserve Fund, in each
case after taking into account the proposed deposit to the
Transferor's Account on that day; and provided further, that any
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amounts not deposited to the Transferor's Account because of the
limitation set forth in the first proviso hereto shall be (x)
deposited as Cure Funds in the Reserve Fund or (y) held in the
Concentration Account for no more than one Business Day and then
deposited (A) as Cure Funds in the Reserve Fund or (B) in the
Transferor Account for reinvestment for the benefit of the Investor
Certificateholders, if and only if, after giving effect to such
transfer to the Transferor Account, the percentage that is the
Transferor Percentage shall be at least 2% and the Net Receivables
Balance shall be equal to or greater than 120% of the excess of the
Invested Amount over the Cure Funds held in the Reserve Fund at such
time."
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(f) The words "Section 9.01(a) or (h)" in Section 4.05 are amended to read
"Section 9.01(a), (h) or (l)".
(g) Section 9.01 is amended by adding immediately after subsection (k)
thereto a new subsection (l) as follows:
"(l) if, at any time, for any reason other than Receivables becoming
Defaulted Receivables or Disputed Receivables, either (1) the Net
Receivables Balance falls below 120% of the excess of the Invested Amount
over the Cure Funds held in the Reserve Fund at such time, or (2) the
Transferor Percentage is less than 2%, and in either such case, a Cure
Period is not then in effect or applicable."
(h) A new Exhibit G is added to the Agreement, to read in the form of
Exhibit G to this Amendment.
2. Waiver of Requirement to Provide Notice of Amendment. The Trustee
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need not furnish written notification of the substance of this Amendment to the
Investor Certificateholders pursuant to Section 13.01(c) of the Agreement.
3. Effectiveness. This Second Amendment shall become effective as of the
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date on which it has been executed by each of Rohr, Transferor and Trustee, and
has received the consent of Holders of Investor Certificates evidencing more
than 50% of the Invested Amount.
4. Costs and Expenses. Rohr agrees to pay on demand all costs and
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expenses of the Trustee and the Investor Certificateholders in connection with
the preparation, execution and delivery of this Second Amendment.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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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 LAWS.
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6. Counterparts. This Amendment may be executed in one or more
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counterparts and by different parties hereto in separate counterparts, each of
which when executed and delivered shall be deemed to be an original and all of
which when taken together shall constitute the same instrument.
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IN WITNESS WHEREOF, the Transferor, Rohr and the Trustee have caused this
Amendment to be duly executed by their respective officers as of the day and
year first above written.
RI RECEIVABLES, INC.
By: /s/ R. M. Miller
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Name: R. M. Miller
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Title: President and Treasurer
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ROHR, INC.
By: /s/ R. W. Madsen
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Name: R. W. Madsen
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Title: Vice President
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BANKERS TRUST COMPANY, Trustee
By: /s/ Elizabeth Robinson
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Name: Elizabeth Robinson
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Title: Assistant Treasurer
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The undersigned, constituting all of the Investor Certificateholders,
hereby consent to the foregoing Amendment.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Kevin Lalor
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Name: Kevin Lalor
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Title: Vice President
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JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By:
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Name:
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Title:
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JOHN HANCOCK VARIABLE LIFE
INSURANCE COMPANY
By:
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Name:
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Title: `
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